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I 




UA 


AMENDMENTS TO THE CUSTOMS 
AI )M 1NI STRATI YE ACT. 


suggested by the united states board 

OF GENERAL APPRAISERS. 


SUBMITTED TO THE COMMITTEE 
ON WAYS AND MEANS. 


FEBRUARY 20, 1909. 




























































































<r? o - 



e. 


CUSTOMS ADMINISTRATIVE ACT, AS AMENDED TO DATE, WITH 
SUGGESTED AMENDMENTS. 


[Note.— The parts of the present law recommended to be stricken out are in brack¬ 
ets; the parts recommended to be inserted are in italics.] 

Be it enacted, etc. That all merchandise imported into the United 
States shall, for the purpose of this act, be deemed and held to be 
the property of the person to whom the [merchandise may be con¬ 
signed ; but] same is consigned; and the holder of [any] a bill of lading 
[consigned to order and indorsed by the consignor] duly indorsed by 
the consignee therein named, or, if consigned to order, by the consignor, 
shall be deemed-the consignee thereof; and in case of the abandon¬ 
ment of any merchandise to the underwriters the latter may be 
recognized as the consignee. 

Sec. 2. That all invoices of imported merchandise shall be made 
out in the currency of the place or country from whence the impor¬ 
tations shall be made, or, if purchased, in the currency actually 
paid therefor, shall contain a correct description of such merchandise, 
and shall be made in triplicate or quadruplicate in case of merchandise 
intended for immediate transportation without appraisement, and 
signed by the person owning or shipping the same, if the merchandise 
has been actually purchased, or by the manufacturer or owner 
thereof, if the same has been procured otherwise than by purchase, 
or by the duly authorized agent of such purchaser, seller, manu¬ 
facturer or owner. 

Sec. 3. That all such invoices shall, at or before the shipment of 
the merchandise, be produced to the consul, vice-consul, or commercial 
agent of the United States of the consular district in which the merchan¬ 
dise was manufactured or purchased, as the case may be, for export to 
the United States, and shall have endorsed thereon, when so produced, 
a declaration signed by the purchaser, seller, manufacturer, owner or 
agent, setting forth that the invoice is in all respects correct and true, 
and was made at the place from which the merchandise is to be 
exported to the United States; that it contains, if the merchandise 
was obtained by purchase, a true and full statement of the time when, 
the place where, the person from whom the same was purchased, and 
the actual cost thereof, and of all charges, thereon, as provided by 
this act; and that no discounts, bounties or drawbacks are con¬ 
tained in the invoice but such as have been actually allowed thereon; 
and when obtained in any other manner than by purchase, the actual 
market value or wholesale price thereof, at the time of exportation to 
the United States, in’the principal markets of the country from whence 
exported; that such actual market value is the price at which the 
merchandise described in the invoice is freely offered for sale to all 
purchasers in said markets, and that it is the price which the manu- 

3 



4 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


facturer or owner making the declaration would have received, and 
was willing to receive, for such merchandise sold in the ordinary 
course of trade in the usual wholesale quantities, and that it includes 
all charges thereon as provided by this act; and the actual quantity 
thereof; and that no different invoice of the merchandise mentioned 
in the invoice so produced has been or will be furnished to any one. 
If the merchandise was actually purchased, the declaration shall also 
contain a statement that the currency in which such invoice is made 
out is that which was actually paid for the merchandise by the 
purchaser. 

Sec. 4. That, except in case of personal effects accompanying the 
passenger, no importation of any merchandise exceeding one hundred 
dollars in [dutiable] value shall be admitted to entry without the 
production of a duly certified invoice thereof as required by law, or 
of an affidavit made by the owner, importer or consignee, before the 
collector or his deputy, showing why it is impracticable to produce 
such invoice; and no entry shall be made in the absence of a certified 
invoice, upon affidavit as aforesaid, unless such affidavit be accom¬ 
panied by a statement in the form of an invoice, or otherwise, show¬ 
ing the actual cost of such merchandise, if purchased, or if obtained 
otherwise than by purchase, the actual market value or wholesale 
price thereof at the time of exportation to the United States in the. 
principal markets of the country from which the same has been im¬ 
ported; which statement shall be verified by the oath of the owner, 
importer, consignee or agent desiring to make entry of the merchan¬ 
dise, to be administered by the collector or his deputy, and it shall 
be lawful for the collector or his deputy to examine the deponent 
under oath, touching the sources of his knowledge, information or 
belief, in the premises, and to require him to produce any letter, 
paper or statement of account in his possession, or under his control, 
which may assist the officers of customs in ascertaining the actual 
value of the importation or any part thereof, and in default of such 
production, when so requested, such owner, importer, consignee or 
agent shall be thereafter debarred from producing any such letter, 
paper or statement for the purpose of avoiding any additional duty, 
penalty or forfeiture incurred under this act, unless he shall show to 
the satisfaction of the court or the officers of the customs, as the 
case may be, that it was not in his power to produce the same when 
so demanded; and no merchandise shall be admitted to entry under 
the provisions of this section unless the collector shall be satisfied 
that the failure to produce a duly certified invoice is due to causes 
beyond the control of the owner, consignee, or agent thereof. Pro¬ 
vided that the Secretary of the Treasury may make regulations by 
which books, magazines and other periodicals published and im¬ 
ported in successive parts, numbers, or volumes, and entitled to be 
imported free of duty, shall require but one declaration for the entire 
series. And when entry of merchandise exceeding one hundred 
dollars in value is made by a statement in the form of an invoice, 
the collector shall require a bond for the production of a duly certified 
invoice. 

Sec. 5. That whenever merchandise imported into the United 
States is entered by invoice, one of the following declarations, accord¬ 
ing to the nature of the case, shall be filed with the collector of the 
port at the time of entry by the owner, importer, consignee or agent, 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


5 


which declaration so filed shall be duly signed by the owner, importer, 
consignee or agent before the collector, or before a notary public or 
other officer duly authorized by law to administer oaths and take 
acknowledgments, who may be designated by the Secretary of the 
Treasury to receive such declarations and to certify to the identity 
of the persons making them, under regulations to be prescribed by the 
Secretary of the Treasury; and every officer so designated shall file 
with the collector of the port a copy of his official signature and seal. 
Provided, that if any of the invoices or bills of lading of any merchan¬ 
dise imported in any one vessel which should otherwise be embraced in 
said entry, have not been received at the date of the entry, the 
declaration may state the fact, and thereupon such merchandise, of 
which the invoices or bills of lading are not produced, shall not be 
included in such entry, but may be entered subsequently. 

DECLARATION OF CONSIGNEE, IMPORTER, OR AGENT. 

I, --, do solemnly and truly declare that I am the 

consignee, importer, or agent of the merchandise described in the 
annexed entry and invoice; that the invoice and bill of lading now 

presented by me to the collector of--are the true and only 

invoice and bill of lading by me received of all the goods, wares and 

merchandise imported in the-, whereof-— is master, from 

- —, for account of any person whomsoever for whom I am 

authorized to enter the same; that the said invoice and bill of lading 
are in the state in which they were actually received by me, and that 
I do not know or believe in the existence of any other invoice or bill 
of lading of the said goods, wares and merchandise; that the entry 
now delivered to the collector contains a just and true account of the 
said goods, wares and merchandise, according to the said invoice 
and bill of lading; that nothing has been on my part, nor to my 
knowledge on the part of any other person, concealed or suppressed, 
whereby the United States may be defrauded of any part of the duty 
lawfully due on the said goods, wares and merchandise; that the 
said invoice and the declaration therein are in all respects true, 
and were made by the person by whom the same purport to have 
been made; and that if at any time hereafter I discover any error in 
the said invoice, or in the account now rendered of the said goods, 
wares and merchandise, or receive any other invoice of the same, I 
will immediately make the same known to the collector of this dis¬ 
trict. And I do further solemnly and truly declare that to the best 
of my knowledge and belief (insert the name and residence of the 
owner or owners) is (or are) the owner (or owners) of the goods, 
wares and merchandise mentioned in the annexed entry; that the 
invoice now produced by me exhibits the actual cost (if purchased) or 
the actual market value or wholesale price (if otherwise obtained) at 
the time of exportation to the United States in the principal markets 
of the country from whence imported of the said goods, wares and 
merchandise, and includes and specifies the value of all cartons, 
cases, crates, boxes, sacks, casks, barrels, hogsheads, bottles, jars, 
demijohns, carboys, and other containers or coverings, whether holding 
liquids or solids, which are not otherwise specially subject to duty under 
any paragraph of the tariff act, and all other costs, charges and expenses 
incident to placing said goods, wares and merchandise in condition, 








6 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


packed ready for shipment to the United States, and no other or dif¬ 
ferent discount, bounty or drawback but such as has been actually 
allowed on the same. 

The person making this declaration shall be required to strike out 
the words “or the actual market value or wholesale price/’ if the 
merchandise was purchased, or the words “the actual cost/’ if 
otherwise obtained, in accordance with the facts in the case. 

DECLARATION OF OWNER IN CASES WHERE MERCHANDISE HAS BEEN 
ACTUALLY PURCHASED. 

I,-, do solemnly and truly declare that I am the 

owner by 'purchase of the merchandise described in the annexed entry 
and invoice; that the entry now delivered by me to the Collector 

of —- contains a just and true account of all the goods, wares 

and merchandise imported by or consigned to me, in the-, 

whereof-is master, from-; that the invoice and entry, 

which I now produce, contain a just and faithful account of the 
actual cost of the said goods, wares and merchandise, and include 
and specify the value of all cartons, cases, crates, boxes, sacks, casks , 
barrels, hogsheads, bottles, jars, demijohns, carboys, and other containers 
or coverings, whether holding liquids or solids, which are not otherwise 
specially subject to duty under any paragraph of the tariff act, and 
all other costs, charges and expenses incident to placing said goods, 
wares and merchandise in condition, packed ready for shipment to 
the United States, and no other discount, drawback or bounty but 
such as has been actually allowed on the same; that I do not know 
nor believe in the existence of any invoice or bill of lading other than 
those now produced by me, and that they are in the state in which 
I actually received them. And I further solemnly and truly declare 
that I have not in the said entry or invoice concealed or suppressed 
anything whereby the United States may be defrauded of any part 
of the duty lawfully due on the said goods, wares and merchandise; 
that to the best of my knowledge and belief the said invoice and the 
declaration thereon are in all respects true, and were made by the 
person by whom the same purport to have been made, and that 
if at any time hereafter I discover any error in the said invoice or in 
the account now produced of the said goods, wares and merchandise, 
or receive any other invoice of the same, I will immediately make 
the same known to the collector of this district. 

DECLARATION OF MANUFACTURER OR OWNER IN CASES WHERE MER¬ 
CHANDISE HAS NOT BEEN ACTUALLY PURCHASED. 

I,-, do solemnly and truly declare that I am the 

owner (or manufacturer) of the merchandise described in the annexed 
entry and invoice; that the entry now delivered by me to the Col¬ 
lector of-contains a just and true account of all the goods, 

wares and merchandise imported by or consigned to me in the-, 

whereof-is master, from-; that the said goods, 

wares and merchandise were not actually bought by me, or by my 
agent, in the ordinary mode of bargain and sale, but that neverthe¬ 
less, the invoice which I now produce contains a just and faithful 
valuation of the same, at their actual market value or wholesale price, 















AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 7 

at the time of exportation to the United States, in the principal 
markets of the country from whence imported for my account (or 
for account of myself or partners); that such actual market value 
is the price at .which the merchandise described in the invoice 
is freely offered for sale to all purchasers in said markets 
and is the price which I would have received and was willing to 
receive for such merchandise sold in the ordinary course of trade 
in the usual wholesale quantities; that the said invoice contains also a 
just and faithful account of all the cost of finishing said goods, wares 
and merchandise to their present condition, and includes and specifies 
the value of all cartons, cases, crates, boxes, sacks, casks, barrels , 
hogsheads, bottles, jars, demijohns, carboys, and other containers or cov¬ 
erings, whether holding liquids or solids, which are not otherwise spe¬ 
cially subject to duty under any paragraph of the tariff act, and all other 
costs and charges incident to placing said goods, wares and merchan¬ 
dise in condition, packed ready for shipment to the United States, 
and no other discount, drawback or bounty, but such as has been 
actually allowed on the said goods, wares and merchandise; that the 
said invoice and the declaration thereon are in all respects true, and 
were made by the person by whom the same purports to have been 
made; that I do not know nor believe in the existence of any other 
invoice or bill of lading other than those now produced by me, and 
that they are in the state in which I actually received them. And I 
do further solemnly and truly declare that 1 have not in the said 
entry or invoice concealed or suppressed anything whereby the 
United States may be defrauded of any part of the duty lawfully due 
on the said goods, wares and merchandise; and that if at any time 
hereafter I discover any error in the said invoice, or in the accounts 
now produced of the said goods, wares and merchandise, or receive 
any other invoice of the same, I will immediately make the same 
known to the collector of this district. 

Sec. 6. No change. 

Sec. 7. That the owner, consignee, or agent of any imported mer¬ 
chandise [which has been actually purchased] may, at the time when 
he shall make and verify his written entry of such merchandise, but 
not afterwards, make such addition in the entry to or such deduction 
from the cost or value given in the invoice or pro forma invoice or 
statement in form of an invoice, which he shall produce with his 
entry, as in his opinion may raise or lower the same to the actual 
market value or wholesale price of such merchandise at the time of 
exportation to the United States, in the principal markets of the 
country from which the same has been imported; [but no such addi¬ 
tion shall be made upon entry to the invoice value of any imported 
merchandise obtained otherwise than by actual purchase;] and the 
collector within whose district any merchandise may be imported 
or entered, whether the same has been actually purchased or pro¬ 
cured otherwise than by purchase, shall cause the actual market 
value or wholesale price of such merchandise to be appraised; and if 
the appraised value of any article of imported merchandise subject 
to an ad valorem duty or to a duty based upon or regulated in any 
manner by the value thereof shall exceed the value declared in the 
entry, there shall be levied, collected, and paid, in addition to the 
duties imposed by law on such merchandise, an additional duty of 
one per centum of the total appraised valile thereof for each one per 


8 AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 

centum that such appraised value exceeds the value declared in the 
entry, provided , that m cases where it shall be made clear to a general 
appraiser, or the board of general appraisers, and they shall so certify 
to the collector, that the difference in value is due to legitimate trade con¬ 
ditions, such additional duty shall not be imposed except upon values 
exceeding by more than five per centum the value declared in the entry; 
but the additional duties shall only apply to the particular article or 
articles in each invoice that are so undervalued and shall not be imposed 
upon any article upon which the amount of duty imposed by law on ac¬ 
count of the appraised value does not exceed the amount of duty that would 
be imposed if the appraised value did not exceed the entered value, and 
shall be limited to [fifty] one hundred per centum of the appraised value 
of such article or articles. Such additional duties shall not be con¬ 
strued to be penal, [and shall not be remitted, nor payment thereof 
in any way avoided, except in cases arising from a manifest clerical 
error, nor shall they be refunded in case of exportation of the mer¬ 
chandise, or on any other account,] and may be remitted by the Secre¬ 
tary of the Treasury whenever he shall be satisfied that the undervalua¬ 
tion was not fraudulent, or was due to trade conditions or to a manifest 
clerical error, and whenever penalties have been imposed upon merchan¬ 
dise the same shall not be refunded in case of exportation of the mer¬ 
chandise, nor shall they be subject to the benefit of drawback. Pro¬ 
vided, That if the appraised value of any merchandise shall exceed 
the value declared in the entry by more than [fifty] one hundred per 
centum, except when arising from a manifest clerical error, such 
entry shall be held to be presumptively fraudulent, and the collector 
of customs shall seize such merchandise and proceed as in case of 
forfeiture for violation of the customs laws, and in any legal proceed¬ 
ing that may result from such seizure, the undervaluation as shown 
by the appraisal shall be presumptive evidence of fraud, and the 
burden of proof shall be on the claimant to rebut the same, and for¬ 
feiture shall be adjudged unless he shall rebut such presumption of 
fraudulent intent by sufficient evidence. The forfeiture provided for 
in this section shall apply to the whole of the merchandise or the 
value thereof in the case or package containing the particular article 
or articles in each invoice which are undervalued. Provided further, 
That all additional duties, penalties or forfeitures applicable to mer¬ 
chandise entered by a duly certified invoice, shall be alike applicable 
to merchandise entered by a pro forma invoice or statement in the 
form of an invoice, and no forfeiture or disability of any kind incurred 
under the provisions of this section, shall be remitted or mitigated 
by the Secretary of the Treasury. The duty shall not, however, be 
assessed in any case upon an amount less than the [invoice or] en¬ 
tered value. 

Sec. 8. No change. 

Sec. 9. No change. 

Sec. 10. No change. 

Sec. 11. That, when the actual market value as defined by law, 
of any article of imported merchandise, wholly or partly manufactured 
and subject to an ad valorem duty, or to a duty based in whole or in 
part on value, cannot be otherwise ascertained to the.satisfaction of 
the appraising officer, such officer shall use all available means in his 
power to ascertain the cost of production of such merchandise at the 
time of exportation to the United States, and at the place of manu- 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


9 


facture; such cost of production to include the cost of materials and 
of fabrication, all general expenses, to be estimated at not less than ten 
per centum per annum , covering each and every outlay of whatsoever 
nature incident to such production, together with the expense of pre¬ 
paring and putting up such merchandise ready for shipment, and an 
addition of not less than eight nor more than fifty per centum upon 
the total cost as thus ascertained; and in no case shall such mer¬ 
chandise be appraised upon original appraisal or reappraisement at 
less than the total cost of production as thus ascertained. It shall 
be lawful for appraising officers, in determining the dutiable value 
of such merchandise, to take into consideration the wholesale price 
at which such or similar merchandise is sold or offered for sale in the 
United States, due allowance being made for estimated duties thereon, 
the cost of transportation, insurance, and other necessary expenses 
from the place of shipment to the United States, and a reasonable 
commission, if any has been paid, not exceeding six per centum. 
The actual market value or wholesale price, as defined by law, of any 
imported merchandise which is consigned for sale in the United States or 
which is not actually sold and freely offered for sale in usual wholesale 
quantities in the open market of the country of exportation to all pur¬ 
chasers, shall not in any case be appraised at less than the wholesale 
price at which, such or similar imported merchandise is actually sold 
and freely offered for sale in usual wholesale quantities in the United 
States in the open market to all purchasers, due allowance by deduction 
being made for estimated duties thereon, cost of transportation, insurance 
and. other necessary expenses from the place of shipment to the place of 
delivery, and a reasonable commission not exceeding ten per centum, if 
any of the same has been paid. 

Sec. 12. No change. 

Sec. 13. That the appraiser shall revise and correct the reports of 
the assistant appraisers as he may judge proper, and the appraiser, 
or, at ports where there is no appraiser, the person acting as such, 
shall report to the collector his decision as to the value of the mer¬ 
chandise appraised. At ports where there is no appraiser the cer¬ 
tificate of the customs officer to whom is committed the estimating 
and collection of duties, of the dutiable value of any merchandise 
required to be appraised, shall be deemed and taken to be the 
appraisement of such merchandise. If the collector shall deem the 
appraisement of any imported merchandise too low, he may, vnthin 
thirty days thereafter, order a reappraisement, which shall be made 
by one of the general appraisers, or if the importer, owner, agent 
or consignee of such merchandise shall be dissatisfied with the 
appraisement thereof, and shall have complied with the require¬ 
ments of law with respect to the entry and appraisement of mer¬ 
chandise, he may within [two] thirty days thereafter give notice to 
the collector, in writing, of such dissatisfaction, on the receipt 
of which the collector shall at once direct a' reappraisement of 
such merchandise by one of the general appraisers. The decision of 
the appraiser or the person acting as such (in cases where no objection 
is made thereto, either by the collector or by the importer, owner, 
consignee, or agent), or of the general appraiser in cases of reappraise- 
.ment, shall be final and conclusive as to the dutiable value of such 
merchandise against all parties interested therein, unless the importer, 
owner, consignee or agent of the merchandise shall be dissatisfied with 


10 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


such decision, and shall, within two days thereafter, give notice to the 
collector, in writing, of such dissatisfaction, or unless the collector 
shall deem the appraisement of the merchandise too low, in either case 
the collector shall transmit the invoice and all the papers appertaining 
thereto to the board of [three general appraisers, which shall be on 
duty at the port of New York, or to a board of three general appraisers 
who may be designated by the Secretary of the Treasury for such duty 
at that port or at any other port, which board shall examine and 
decide the case thus submitted, and their decision or that of a majority 
of them shall be final and conclusive as to the dutiable value of such 
merchandise against all parties interested therein,] nine general 
appraisers, to be by rule thereof assigned for determination. In such 
cases the general appraiser and boards of general appraisers shall proceed 
by all reasonable ways and means in their power to ascertain, estimate 
and determine the dutiable value of the imported merchandise, and in so 
doing may exercise both judicial and inquisitorial functions. In such 
cases all hearings shall be open and in the presence of the importer or his 
attorney and any duly authorized representative of the government, who 
may examine and cross-examine all witnesses produced, unless the general 
appraiser, or the board of general appraisers, before whom the case is 
pending, shall determine that the public interest will suffer thereby, in 
which case such finding shall be entered upon the record of the case, 
together with a full summary of all the facts developed at any closed 
hearing, which record shall, after due notice and before decision, be open to 
the inspection and rebuttal of both parties. The decision of the single 
general appraiser in case of no appeal, and of the board of three general 
appraisers, in all reappraisement cases shall be final and conclusive 
against all parties and shall not be subject to review in any manner for 
any cause in any tribunal or court save and except as to questions of fraud 
and want of jurisdiction, and the collector or the person acting as such 
shall ascertain, fix and liquidate the rate and amount of the duties to 
be paid on such merchandise, and the dutiable costs and charges 
thereon, according to law. 

Sec. 14. Amended by necessary implication. See new sections 32 
and 33 (infra). 

Amend section 15 as follows: 

Strike out all of section 15, as amended by the act of May 27, 
1908, and insert in lieu thereof the following: 

“Sec. 15. That, under and in pursuance of the authority vested 
by Article III of the Constitution of the United States, there is hereby 
created a United States court of customs appeals, which shall consist 
of a chief justice and two associate justices appointed by the President, 
by and with the advice and consent of the Senate, not more than two of 
whom shall be appointed from the same political party, each of whom 
shall receive a salary of ten thousand dollars a year, arid each of whom 
shall at the time of such appointment have been admitted to practice 
in the Supreme Court of the United States and shall be experienced in 
the customs laws of the United States. It shall be a court of record, 
with jurisdiction as hereinafter limited and established. 

“ That such court shall prescribe the form and style of its seal and 
the form of its writs and other process and procedure as may be con¬ 
formable to the exercise of its jurisdiction as shall be conferred by law. 
It shall have the services of a marshal, with the same duties and powers, 
under the regulations of the court, as are now provided for the marshal 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


11 


of the Supreme Court of the United States, so far as the same may 
be applicable, which shall be performed by the United States mar¬ 
shals in and for the districts where sessions of said court may be 
held, and to this end said marshals shall be the marshals of said 
court of customs appeals. The court shall appoint a cleric, whose 
office shall be in the city of New York, and who shall perform and 
exercise the same duties and powers in regard to all matters within its 
jurisdiction as are now exercised and performed by the clerk of 
the Supreme Court of the United States, so far as the same may 
be applicable. The salary of the clerk shall be three thousand six hun¬ 
dred dollars a year, to be paid in equal monthly installments. The 
costs and fees in the said court shall be fixed and established by said 
court in a table of fees to be adopted and approved by the Supreme 
Court within three months after the organization of said court: Provided, 
That the costs and fees so fixed shall not, with respect to any item, exceed 
the costs and fees now charged in the Supreme Court; and the same 
shall be expended, accounted for, and paid over to the Treasury Depart¬ 
ment of the United States in the same manner as is provided in respect 
of the costs and fees in the Supreme Court. The court shall have power 
to establish all rules and regulations for the conduct of the business of 
the court within its jurisdiction as conferred by law. 

u That the said United States court of customs appeals shall always 
be open for the transaction of business, and sessions thereof may be 
held annually, or oftener, by the said court, the chief justice or a justice 
thereof, in the several judicial circuits, at the following places: In the 
first circuit, in the city of Boston; in the second circuit, in the city of 
New York; in the third and fourth circuits, in the cities of Philadel¬ 
phia and Baltimore; in the fifth circuit, in the city of New Orleans; 
in the sixth, seventh and eighth circuits, at the city of Chicago; in the 
ninth circuit, in the cities of Seattle, Portland, and San Francisco, and 
in such other places in each of the above circuits as said court may from 
time to time designate. The said court shall organize and open for the 
transaction of business at the city of New York within ninety days 
after the day of confirmation by the United States Senate of the last 
confirmed of the first three justices thereof. 

u That no appeal, whether by writ of error or otherwise, shall here¬ 
after be taken or allowed from any board of United States general ap¬ 
praisers to any circuit court, and no appellate jurisdiction shall here¬ 
after be exercised or allowed by said circuit courts in cases decided by 
said board of United States general appraisers; but all appeals by writ 
of error or otherwise allowed by taw from such board of general apprais¬ 
ers shall be subject to review only in the United States court of customs 
appeals hereby established, according to the provisions of the Acts estab¬ 
lishing and regulating the same. 

11 That the court of customs appeals established by this Act shall 
exercise exclusive appellate jurisdiction to review by appeal, writ of 
error, or otherwise as by law provided final decisions by a board of gen¬ 
eral appraisers in all cases as to the construction of the law and the facts 
respecting the classification of merchandise and the rate of duty imposed 
thereon under such classification, and the fees and charges connected 
therewith, and all appealable questions as to the jurisdiction of said 
board, and all appealable questions as to the laws and regulations gov¬ 
erning the collection of the customs revenues; and the judgment or decrees 


12 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


of said court of customs appeals shall be final in all such cases, excepting 
mat in every such subject within its jurisdiction the court of customs 
appeals at any time may certify to the Supreme Court of the United 
States any questions or propositions of law concerning which it desires 
the instruction of that court for its proper decision. And thereupon the 
Supreme Court may either give its construction on the question and 
propositions certified to it, •which shall be binding upon the court of 
customs appeals in such case, or it may require that the whole record arid 
cause may be sent up to it for its consideration, and thereupon shall 
decide the whole matter in controversy in the same manner as if it had 
been brought therefor review by writ of error or appeal. And excepting, 
also, that in any such case as is hereinbefore made final in the court of 
customs appeals it shall be competent for the Supreme Court to require, 
by certiorari or otherwise, any such case to be certified to the Supreme 
Court for its review and determination with the same power and authority 
in the case as if it had been carried by appeal or writ of error to the 
Supreme Court. But no such appeal shall be taken or writ of error sued 
out unless within sixty days after the entry of the order, judgment, or 
decree sought to be reviewed. 

11 That any justice who, in pursuance of the provisions of this Act, shall 
attend a session of the court of customs appeals held at any place other 
than where he resides shall be paid as herein provided for travel and at¬ 
tendance, not to exceed ten dollars per day, and the reasonable expenses, 
not to exceed six dollars per day, of one stenographic clerk who may 
accompany him. 

“ That the marshals of the several districts in which said court of cus¬ 
toms appeals may be held shall, under the direction of the Attorney-Gen¬ 
eral of the United States and with his approval, provide such r 007ns in 
the public buildings of the United States as may be necessary for said 
court: Provided, however, That in case proper rooms can not be provided 
in such buildings then the said marshals, with the approval of the 
Attorney-General of the United States, may, from time to time, lease such 
rooms as may be necessary for such court: that the bailiff's and messengers 
shall be allowed the same compensation for their respective services as are 
allowed for similar services, in the existing circuit courts: And provided 
further, That in no case shall said marshals secure other rooms or employ 
other officials or employees than those regularly occupied by existing cir¬ 
cuit courts of appeals, circuit courts, or district courts, or other public 
officers, except where such can not by reason of other actual occupancy or 
use be occupied or used by said court of custom s a ppeals. 

11 That no appeal or writ of error by which any reviewable order, 
judgment, decree, decision, or finding may be reviewed in the court of 
customs appeals under the provisions of this Act shall be teiken or sued 
out except within sixty days after the entry of such order, judgment, 
decree, decision, or finding sought to be reviewed, and if the owner, 
consignee, or agent of any imported merchandise, or the collector or 
Secretary of the Treasury, shall be dissatisfied with the decision of the 
board of general appraisers, as provided in section fourteen of the customs 
administrative Act of June tenth, eighteen hundred and ninety, as 
amended July twenty-fourth, eighteen hundred and ninety-seven, and 
May twenty-seventh, nineteen hundred and eight, and as the same 
may hereafter be amended, as to the construction of the law and the 
facts respecting the classification of such merchandise and the rate of 
duty imposed thereon under such classification, or other appealable 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


13 


decision of said board, they or either of them, may, within sixty days 
next after such decision, and not afterwards, apply to the United States 
court of customs appeals for a review of the questions of law and fact 
involved in such decision. Such application shall be made by filing 
in the office of the clerk of said court a concise statement of errors of law 
and fact complained of, and a copy of said statement shall be served on 
the collector or on the importer, owner, consignee, or agent, as the case 
may be. Thereupon the court shall immediately order the board of 
general appraisers to return to said court the record and evidence 
taken by them, together with the certified statement of the facts in¬ 
volved in the case and their decision thereon; and all the evidence taken 
by and before said board shall be competent evidence before said court of 
customs appeals. The said court of customs appeals is further vested 
with power to order said board to take additional testimony as to any 
particular fact or issue in dispute and return the same to said court 
whenever said court sha ll be of the opinion the ends of justice will be best 
subserved thereby. Such further evidence, with the aforesaid returns, 
shall constitute the record upon which said court of customs appeals shall 
proceed to hear and determine the questions of law and fact involved in 
such decision of said board of general appraisers, and the decision of said 
court of customs appeals shall be final, and such cause shall be remanded 
to said board of general appraisers for further proceedings to be taken in 
pursuance of such determination. And whenever, on appeal or writ of 
error or otherwise, a case coming from the court of customs appeals shall 
be reviewed and determined in the Supreme Court the case shall be 
remanded by the Supreme Court to the said court for further proceedings 
in pursuance of such determination. And all the provisions of law, 
now in force regulating the method and system of review through appeals 
or writs of error or otherwise in the cases covered by this Act, shall, except 
as herein expressly or by implication modified, regulate the methods and 
system of papeals, writs of error, and other methods of review provided for 
in this Act vnth respect to the court of customs appeals, including all 
provisions, if any, for bonds or other securities to be required and taken 
on such writs of error or review or appeals. 

“ That immediately upon this Act becoming operative and the organi¬ 
zation of said court herein established, all cases within the jurisdiction 
of this court now pending by writ of error or other review or appeal in 
any and all of the circuit courts of appeals shall, with the record and 
samples therein, be certified by such courts, respectively, to this said 
court for further proceedings in accordance herewith; and all such 
cases likewise pending in any of the United States circuit courts shall, 
as to all those wherein orders for the taking of further testimony have 
been already made, as soon as the taking of testimony therein by referee 
as provided by law shall have been completed, and as to all others immedi¬ 
ately, likewise certify the same, together with the records and samples 
therein, to this said court for further proceedings in accordance herewith. 

“ That the chief justice of said court shall be so designated in the 
order of appointment and commission issued him by the President, 
and the associate justices shall have precedence according to the date 
of their commissions, or, when the commissions of two or more of them 
bear the same date, according to their ages. Any two of the members 
of said court shall constitute a quorum; any one may upon designa¬ 
tion by the chief justice hold a session of said court for the hearing and 
submission of cases in any of the circuits as designated. 


14 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


11 That in case of vacancy, temporary inability or disqualification 
for any reason, of any one or two justices of said court, the chief justice 
thereof may request any other qualified United States circuit or district 
judge or judges to act in his or their place, or, upon such request to 
and designation by the President of the United States, such judge or 
judges shall be duly qualified to and shall so act. 

u Said United States court of customs appeals shall have power to 
review any decision or matter within its jurisdiction and may affirm, 
modify, or reverse the same and remand the case with such orders as 
may seem to it proper in the premises, which shall be executed accord¬ 
ingly. 

“ That immediately upon receipt of any record transmitted to said 
court for determination the cleric thereof shall place the same upon the 
calendar for hearing and submission; that such calendar shall be called 
and all cases thereupon submitted, except for good cause shown, at 
least once every sixty days; that no justice of said court shall, after 
one year after the first organization of said court, be allowed to draw or 
receive any salary unless he shall first take and subscribe an affidavit 
before an officer entitled to administer oaths that no cause in his court 
remains undecided that has been submitted for decision for the period 
of ninety days. 

11 That in addition to the clerk of said court the court may appoint 
an assistant clerk at a salary of one thousand eight hundred dollars per 
year, three stenographic clerks at a salary of one thousand eight hundred 
dollars a year each, one baliff at a salary of one thousand two hundred 
dollars a year, and one stenographic reporter at a salary of two thousand 
four hundred dollars a year, and a messenger at a salary of nine hundred 
dollars a year, all payable in equal monthly installments, and all of 
whom, including the clerk, shall hold office during the pleasure of and 
perform such duties as are assigned them by the court. That said reporter 
shall prepare and transmit to the Secretary of the Treasury once a 
week in time for publication in an appropriate department of the Treasury 
Decisions copies of all decisions rendered to that date by said court, 
and prepare and transmit, under the direction of said court, at least 
once per year, reports of said decisions rendered to that date, with appro¬ 
priate syllabi, constituting a volume, which shall be printed by the 
Treasury Department in such numbers and distributed or sold as the 
Secretary of the Treasury shall direct. 

1 1 That so much of the public funds as may be necessary to carry 
out the purposes of this Act and all final judgments, when in favor 
of the importer, shall be satisfied and paid by the Secretary of the Treasury 
from the permanent indefinite appropriation provided for in section 
twenty-four of this Act.” 

Sec. 16. No change. 

Sec. 17. No change. 

Sec. 18. No change. 

Sec. 19. That whenever imported merchandise is subject to an ad 
valorem rate of duty, or to a duty based upon or regulated in any 
manner by the value thereof, the duty shall be assessed upon the 
actual market value or wholesale price of such merchandise, as 
bought and sold in usual wholesale quantities, at the time of exporta¬ 
tion to the United States, in the principal markets of the country 
from whence imported, and in the condition in which such merchan¬ 
dise is there bought and sold for exportation to the United States, 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


15 


or consigned to the United States for sale, including the value of all 
cartons, cases, crates, boxes, sacks, casks, barrels, hogsheads, bottles, 
jars, demijohns, carboys, and other containers or coverings, whether 
holding liquids or solids, which are not otherwise specially subject to 
duty under any paragraph of the tariff act, and all other costs, charges 
and expenses incident to placing the merchandise in condition, 
packed ready for shipment to the United States, and if there be 
used for covering or holding imported merchandise, whether dutia¬ 
ble or free, any unusual article or form designed for use otherwise 
than in the bona fide transportation of such merchandise to the 
United States, additional duty shall be levied and collected upon 
such material or article at the rate to which the same would be sub¬ 
jected if separately imported. [That the words “value” or “actual 
market value” whenever used in this act or in any law relating to 
the appraisement of imported merchandise shall be construed to 
be the actual market value or wholesale price as defined in this 
section.] That the words “value,” or “actual market value,” or 
“wholesale price,” whenever used in this act, or in any law relating 
to the appraisement of imported merchandise, shall be construed to be 
the actual market value or wholesale price of such, or similar merchan¬ 
dise comparable in value therewith, as defined in this section, when 
actually sold and freely offered for sale in the open market in usual 
wholesale quantities of the country of exportation to all purchasers. 

Sec. 20. No change. 

Sec. 21. No change. 

Sec. 22. No change. 

Sec. 23. That no allowance for damage to goods, wares and mer¬ 
chandise imported into the United States, including decay, injury, or 
destruction by rot of fruits or any other merchandise, shall hereafter be 
made in the estimation and liquidation of duties thereon, except in 
cases where such goods may have been seized and destroyed under orders 
issued by any lawfully constituted board of health, but the importer 
thereof may within ten days after entry, abandon to the United 
States all or any portion of goods, wares and merchandise included 
in any invoice and be relieved from the payment of the duties on 
the portion so abandoned: Provided, That the portion so abandoned 
shall amount to ten per cent or over of the total value or quantity of 
the invoice, and the property so abandoned, if of any value, shall be 
sold by public auction or otherwise disposed of for the account and 
credit of the United States under such regulations as the Secretary 
of the Treasurv rryiy prescribe. The right of abandonment herein pro¬ 
vided for may be exercised whether the thing abandoned has any market 
value or not. 

Sec. 24. No change. 

Sec. 25. No change. 

Sec. 26. No change. 

Sec. 27. No change. 

Sec. 28. No change. 

Sec. 29. No change. 

Sec. 30. No change. 

Sec. 31. No change. 

Sec. 32. All notices in writing to collectors of dissatisfaction of any 
decision thereof, with the invoice and all papers and exhibits, shall be 
forwarded to the board of nine general appraisers of merchandise at 


16 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


New York to be by rule thereof assigned for hearing or determination 
or both. The President of the United States shall designate one of the 
board of nine general appraisers of merchandise as president of said 
board and others in order to act in his absence. Said general appraisers 
of merchandise shall be divided into three boards of three members each, 
to be denominated respectively Board l, Board 2 and Board 3. The 
president of the board shall assign three general appraisers to each of 
said boards and shall designate one member of each of said boards as 
chairman thereof, and such assignment or designation may be by him 
changed from time to time, and he may assign or designate all boards 
of three general appraisers where it is now or heretofore was provided 
by law that such might be assigned or designated by the Secretary of the 
Treasury. The president of the board shall be competent to sit as a 
member of any board, or assign one or two other members thereto, in the 
absence or inability of any one or two members of such board. Each 
of the boards of three general appraisers, or a majority thereof, shall 
have full power to hear and determine all cases and questions arising 
therein or assigned thereto; and the general board of nine general apprais¬ 
ers, and each of the general appraisers of merchandise, shall have all 
the jurisdiction and powers and proceed as now, heretofore and herein pro¬ 
vided. The said board of nine general appraisers shall have power to 
establish from time to time such rules of evidence, practice and procedure, 
not inconsistent with the statutes, as may be deemed necessary for the con¬ 
duct and uniformity of its proceedings and decisions and the proceedings 
and decisions of the boards of three thereof; and for the production, care and 
custody ofsamples and records ofsaid board. The president of the board shall 
have control of the fiscal affairs and the clerical force of the board, make 
all recommendations for appointment, promotion and otherwise affecting 
said clerical force; he may at any time before trial under the rules of said 
board assign or reassign any case for hearing, determination or both, and 
shall designate a general appraiser or a, board of general appraisers and, 
if necessary, a clerk thereto, to proceed to any port within the jurisdiction 
of the United States for the purpose of hearing, or determining if author¬ 
ized by law, causes assigned for hearing at such port, and shall cause 
to be prepared and duly promulgated dockets therefor. No member of 
any of said boards shall sit to hear or decide any case on appeal in the 
decision of which he may have previously participated. The Board of 
three general appraisers, or a majority of them, who decided the case, 
may, upon motion of either party made within thirty days next after their 
decision, grant a rehearing or retrial of said case when in their opinion 
the ends of justice may require it. 

Sec. 33. That the nine general appraisers of merchandise appointed 
under authority of an act entitled, “An Act to simplify the laws m rela¬ 
tion to the collection of the revenues,” approved June 10, 1890, and 
amendments thereto, shall hereafter be known and designated as the 
United States Customs Court, and their individual official title, and that 
of their successors in office, shall be Judge of the United States Customs 
Court. The powers and jurisdiction of the said general appraisers, 
hereafter known and designated as Judges of the United States Customs 
Court, shall remain as now, heretofore and hereafter provided by law, and 
nothing herein shall be construed as creating a new office, but each of said 
general appraisers now in office is expressly continued therein under the 
designation of Judge of the United States Customs Court, with such 
tenure, jurisdiction, rights and duties as now fixed by law, the sole pur- 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 17 

pose of this provision being to change the official title of said United States 
general appraisers. 

I. 

Amend section 1 by striking therefrom the words ‘‘merchandise 
may be consigned; but’" and the word “any” and the words “con¬ 
signed to order and endorsed by the consignor,” and insert in lieu 
thereof in order the words “same is consigned; and the,” the article 
“a” and the words “duly endorsed by the consignee therein named, 
or, if consigned to order, by the consignor.” 

ARGUMENT. 

This change is recommended by the Treasury Department and 
approved by the Board. The law as it exists applies only to mer¬ 
chandise consigned to order, and the suggested amendment extends 
the same to merchandise however consigned. 

II. 

Amend sections 2 and 3 by adding after the word “purchaser” 
the word “seller.” 

» 

ARGUMENT. 

There is no provision in existing law for the making of a. declara¬ 
tion by a seller who is not a manufacturer or owner. Manifestly at 
the time the declaration is made in numerous instances title has 
passed to the purchaser, who may be in this country. It is proper 
in the circumstances to add the word “seller,” who is the person 
who usually makes the declaration. The change is recommended by 
the Treasury Department and approved by the Board of General 
Appraisers. 

III. 

Amend section 4 by striking out the word “dutiable.” 

ARGUMENT. 

As the law stands, a declaration is not required where the importa¬ 
tion is under $100 in dutiable value, but required, under an opinion 
of the Attorney-General, where the importation is under $100 of 
goods entitled to free entry. Eliminating the word “dutiable” 
from the paragraph will remove this inconsistency. The amend¬ 
ment is suggested by the Treasury Department and approved by the 
Board of General Appraisers. 

IV. 

Amend section 5 by adding at the end of declaration of consignee 
the following: 

The person making this declaration shall be required to strike out the words “or the 
actual market value or wholesale price, if the merchandise was purchased,”, or the 
words “actual cost” if otherwise obtained, in accordance with the facts in the case. 

61318— am customs— 09-2 


18 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


ARGUMENT. 

This change is recommended by the Merchants’ Association of 
New York and the Board of General Appraisers, and was originally 
suggested by Honorable Henry L. Burnett, former United States 
District Attorney for the southern district of New York, in a letter 
explaining the same as follows: , 

In the case of a declaration of a consignee, importer or agent of merchandise there 
is an anomaly in the declaration to which I desire to call your attention. There the 
importer, following the form set out in section 5, says, “that the invoice now produced 
by me exhibits the actual cost (if purchased), or the actual market value or wholesale 
price,” and the collector receives this declaration in this alternative form. In pro¬ 
ceedings, therefore, to forfeit the goods, or in any action for the value, as in a case of 
forfeiture, the importer may fall back on any one of the three statements made by 
him as being true; either it was the actual cost, the market value or the wholesale 
price. 

En passant it seems to me the collector ought to be instructed that when receiving 
these declarations the importer should be required to strike out two of these three 
alternatives and to declare specifically either it was the cost, or it was the market 
value, or it was the wholesale price. It does not seem to me that Congress intended 
that the declaration should contain all three of these expressions and in the alternative. 

It is in substance approved by the Secretary of the Treasury. 

Y. 

Amend section 7 as follows: 

Strike out the words “invoice or.” It having already been pro¬ 
posed to permit the importer to enter goods at less than the invoice 
value, the law should not forbid the taking of duty on less than the 
invoice value; hence, the above amendment becomes necessary for 
harmonious enactment. 


ARGUMENT. 

This proposed amendment is approved by the Merchants’ Associa¬ 
tion of New York and the Board of General Appraisers, and was 
included within H. It. 19750, 59th Congress, First Session, which 
passed the House in June, 1906. 


VI. 

In section 5 in the declaration of owner, in cases where merchandise 

has been actually purchased, insert after the words “I-, 

do solemnly and truly declare that I am the owner,” the words, “by 
purchase.” 

ARGUMENT. 

This change will make the form of declaration more specific and 
eliminate such cases as where the person making this declaration was 
not the actual owner of the merchandise in question but through cer¬ 
tain agreement with the bona fide owner honestly believed himself 
qualified to make such declaration. 

This recommendation has the approval of the Merchants’ Associa¬ 
tion of New York, the former United States District Attorney for the 
southern district of New York, the Board of General Appraisers, and 
was included in H. R. 19750, 59th Congress, First Session, which 
pabsed the House June, 1906. 




AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


19 


VII. 

Amend sections 5 and 19 by inserting after the words “ cartons, 
cases, crates, boxes, sacks,” wherever they occur in the said sections, 
the additional words “casks, barrels, hogsheads, bottles, jars, demi¬ 
johns, carboys, and other containers or coverings, whether holding 
liquids or solids, which are not otherwise specially subject to duty 
under any paragraph of the tariff act.” 

ARGUMENT. 

This amendment is deemed necessary in view of the decision of 
the Supreme Court of the United States in the case of United States 
v. Nicholls (186 U. S., 298), where the following language was used: 

We think the rule ejusdem generis applies to the words “coverings of any kind,” 
and that glass bottles, which are never in ordinary parlance spoken of as coverings 
for the liquor contained in them, is such a clear departure from the preceding words 
as to exempt them from the operation of the section, provided, at least, they are 
taxed under a different designation. It is very singular that if Congress intended to 
include under the words “coverings of any kind” vessels used for containing liquors, 
it should not have made use of the words “casks, barrels, hogsheads, bottles, demi¬ 
johns, carboys,” or words of similar signification. The inference is irresistible that 
by the word “coverings” it only intended to include those previously enumerated 
and others of similar character used for the carriage of solids, and not of liquids. 
Webster defines a covering as “anything which covers or conceals, as a roof, a screen, 
a wrapper, clothing,” etc.; but to speak of a liquid as being covered by the bottle 
which contains it, is such an extraordinary use of the English language that nothing 
but the most explicit words of a statute could justify that construction. 

Mr. McKinley of the Committee of Ways and Means, in making 
his report to the House of Representatives, 51st Congress, First Ses¬ 
sion, referred to said section 19 and cited the decision of the Supreme 
Court in the case of OberteuTer v. Robertson (116 U. S., 499), where 
it was held in eirect that the dutiable value of imported merchandise is 
not its value in the condition as generally bought and sold in the foreign 
markets, but in a condition divested of coverings of every kind and of 
all costs and charges for wrapping, folding, ticketing, and other 
expenses to place the goods in a marketable condition. He further 
quotes from the Secretary of the Treasury calling attention to the 
embarrassment of appraising officers in making uniform and satis¬ 
factory appraisements in cases requiring the separate valuation of 
coverings or containers of merchandise and their contents. He 
quoted from the annual report of Secretary Windom, in which the 
following language was used: 

In very many cases merchandise has no market value apart from its coverings and 
incidental packing, and the arbitrary rule that a part of this value should be deducted 
in the assessment ©f duty is illogical and, in fact, requires appraising officers to do an 
impossible thing—to work an incongruity. 

It is suggested that this difficulty would still exist in all cases of 
coverings containing liquids, under the interpretation put upon said 
section 19 by the Supreme Court in the decision above cited. 

This recommendation has the approval of the Board of General 
Appraisers and the Secretary of the Treasury. 

VIII. 

Section 7. Amend this section as follows: 

Strike out of said section the words “which has been actually 
purchased,” and the words “but no such addition shall be made 


20 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


upon entry to the invoice value of any imported merchandise obtained 
otherwise than by actual purchase.” 

ARGUMENT. 

These amendments are designed to give to the importer of con¬ 
signed merchandise the same right which the importer of purchased 
goods now has to make additions on entry to raise his invoice price 
to what he conceives to be the foreign market value. It not infre¬ 
quently happens that the consignee of merchandise which has been 
consigned for sale on account of the exporter receives information 
after the goods have been shipped which satisfies him that the invoice 
value is too low, and it is believed that he should be allowed in such 
cases to make such addition on entry as he may deem proper. Under 
the law as it now exists the importer of consigned goods is sometimes 
obliged to enter his merchandise below what he believes to be its 
foreign market value, and in doing so he is required to make a declara¬ 
tion which he knows to be false. In such cases the goods are advanced 
by the appraiser, and the importer is subjected to heavy penalties 
notwithstanding he stood ready to enter his goods corrcetly if per¬ 
mitted so to do. 

This recommendation has the approval of the Merchants’ Asso¬ 
ciation of New York and the Board of General Appraisers and the 
Secretary of the Treasury. 

IX. 


Amend section 7 as follows: 

After the word u penal” strike out the words: 

and shall not be remitted, nor payment thereof in any way avoided, except in cases 
arising from a manifest clerical error, nor shall they be refunded in case of exportation 
of the merchandise, or on any other account, 

And insert in lieu thereof the words: 

and may be remitted by the Secretary of the Treasury whenever he shall be satisfied 
that the undervaluation was not fraudulent, or was due to trade conditions or to a 
manifest clerical error, and whenever penalties have been imposed upon merchandise 
the same shall not be refunded in case of exportation of the merchandise. 

ARGUMENT. 

This amendment, if adopted, will give to the Secretary of the 
Treasury the power which he formerly exercised under Sections 5292 
and 5293 of the Revised Statutes, of remitting penalties in cases where 
it is shown to his satisfaction that an unintentional error has been 
committed in an invoice or entry, and the case is in no way tainted 
with fraud. 

Under the present law penalties incurred may be remitted only in 
cases of manifest clerical errors. There are many cases arising in the 
administration of the law where errors are committed which can not 
be construed to be “manifest clerical errors” and yet are clearly mis¬ 
takes in transactions of absolute good faith, and where it is apparent 
there was no intention to evade the law. In such cases the imposition 
of penalties works a severe hardship, and a fair and equitable adminis¬ 
tration of the law would seem to require that they be remitted. In 



AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 21 

his last annual report, the Secretary of the Treasury recommends that 
he be given power to remit penalties in such cases. 

This proposed amendment was approved by the Merchants’ Asso¬ 
ciation of New Y ork and the Board of General Appraisers, and was 
recommended to Congress by the Secretary of the Treasury in his 
annual report, 1907, and 1908. 


X. 

Amend section 7 as follows: 

After the words, “so undervalued,” insert the words, “and shall 
not be imposed upon any article upon which the amount of duty 
imposed by law on account of the appraised value, does not exceed 
the amount of duty that would be imposed if the appraised value did 
not exceed the entered value.” 

ARGUMENT. 

The purpose of this amendment is to prevent the imposition of 
penal duties in cases where the appraised value exceeds the entered 
value but the amount of duty remains the same. 

There are certain paragraphs in the tariff act levying specific rates 
of duty with a proviso that in no case shall the duty assessed be less 
than a certain percentage ad valorem. In the case of Hoeninghaus v. 
United States (172 U. S., 622), the United States Supreme Court held 
that in these cases “the duty is in some manner regulated by the 
value.” It follows that if goods dutiable under these paragraphs are 
advanced bv the appraiser, even though the advance is not sufficient 
to subject the goods to the ad valorem duty, the importer is still 
subjected to the imposition of heavy penalties on the mere technical 
ground that the appraised value exceeds the entered value. There 
could be no incentive to undervalue the merchandise in such a case, 
as the importer could not possibly gain anything by stating the value 
below the actual market value, and the imposition of penalties in such 
cases is considered a great hardship. 

This proposed amendment is approved by the Merchants’ Associa¬ 
tion of New York and the Board of General Appraisers and was 
included in II. R. 19750, 59th Congress, First Session, which passed 
the House in June, 1906. 


XI. 


Amend section 7 as follows: 

Provided, That in cases where it shall be made clear to a general appraiser, or the 
board of general appraisers, and they shall so certify to the collector, that the differ¬ 
ence in value is due to legitimate trade conditions, such additional duty shall not be 
imposed except upon values exceeding by more than five per centum the value 
declared in the entry. 

ARGUMENT. 

These proposed amendments constitute one of the subjects of the 
recent treaty between Germany and the United States. The former 
proposition has received the approval of the Merchants’ Association of 
New Y"ork and was included in H. R. 19750, 59th Congress, First Ses¬ 
sion, which passed the House in June, 1906. The latter was suggested 


22 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


and approved as a substitute by the Board of General Appraisers. 
It has been submitted and found to be true by the Board of General 
Appraisers and all appraising officers that, as actual market value of 
merchandise is not a definite quantity but fluctuates within certain 
limits and time, and is more or less proportionate to the volume of 
the transaction, and inasmuch as there is always a certain difference 
in the values given for identical merchandise when appraised by the 
best experts, and even when sold in the same market by different 
manufacturers, that honest variances of at least five per cent occur; 
and, hence, it is believed that a margin of five per cent should be 
allowed between the entered and appraised values of merchandise 
before any penalty should accrue. 

It must, however, be taken into consideration from the experience 
of the government officials under the act of 1883, where a margin of 
ten per cent latitude was allowed, that where this latitude is allowed, 
numerous merchants will enter within the limit allowed below the 
actual market value and take the chance of escaping the increased 
duties upon reappraisement. This creates inequalities in duties as 
against those who refuse to do this, and in effect reduces the intended 
tariff an equivalent amount. It is the opinion of the Board of Gen¬ 
eral Appraisers, therefore, that the provision suggested by them 
would allow for all honest differences, and would place it within the 
power of the appraising officers to correct any possible unfair advan¬ 
tage that was sought to be taken of that provision of the law by inten¬ 
tionally undervaluing to the extent of the latitude allowed by this 
provision. Accordingly the Board recommends only the latter pro¬ 
vision. The former is approved by the Treasury Department. 

XII. 

Amend section 7 as follows: 

Strike out the word “fifty” wherever occurring therein, and insert 
in lieu thereof in each line where occurring the words “one hundred.” 


ARGUMENT. 

This amendment is intended to allow a margin of one hundred per 
cent between the entered and appraised value before the entry is to 
be deemed presumptively fraudulent. It not infrequently happens 
that a difference of more than fifty per cent occurs between the entered 
and appraised value of the merchandise, and yet it would be very dif¬ 
ficult to prove that the entry was fraudulent. In such cases the best 
interests of the government would be subserved if the merchandise 
could be released to the importer upon payment of the additional 
duties accruing from the advance without resort being had to the 
usual seizure proceedings. The difficulty in securing successful pros¬ 
ecutions in seizure cases is set forth in a letter of the former United 
States Attorney for the southern district of New York—General 
Burnett—an extract from which is as follows: 

I am of the opinion it is almost impossible to secure in customs cases a verdict in 
favor of the government in any case where only a technical violation of the law is 
charged—where it is not charged and proved that there was an intent to defraud the 
government, or where the act would result in loss to or fraud upon the government. 
The Customs Administrative Act, Section 7, as amended by Section 32, Act of 1897, 
has given rise to a series of in rem proceedings and actions for value based upon pre¬ 
sumptive fraud arising from undervaluations of more than forty (now fifty) per cent 



AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


23 


upon the basis of the appraised value. As applied to purchased goods, this statutory 
presumption is practically without any probative force in the courts, if any evidence 
be introduced on behalf of the importers. 

This statutory presumption of fraud appears to have been first introduced into our 
customs system by the Act of 1890, and its wisdom as regards purchased goods is more 
than doubtful, as its basis has in effect no real relation to cause of action to be estab¬ 
lished by the government. Unlike the liability on the part of the importers for the 
additional or penal duties, which is not in any sense based on fraud or intent, these 
forfeiture proceedings are based upon fraud, of which the undervaluation is made 
merely presumptive evidence. Fraud arises, however, only where there have been 
acts or omissions intended to deceive, contrary to the duty that the importer owes to 
the government. In the case of goods obtained otherwise than by purchase, the 
importer is required to state the market value in his invoice (with the declaration 
and certificate taken thereon abroad before the Consul), and the entry and declara¬ 
tion thereon taken at the Custom House here. 

This market value is the same thing that the appraising officers are to ascertain 
here, so that undervaluation of fifty..per cent or more, when the invoice and entered 
value is contrasted with the appraised value, signifies with reasonable probability, 
that the importer (and the shipper abroad, whose acts he ratifies) had understated 
the value the law called upon him to state, and this, presumably, knowingly. 

But in the case of purchased goods the invoices are not only not required to give 
the market value, but the statutes specifically provide that they shall give another 
and a different value, the cost or purchase price, and the entry must give this invoice 
value, with the privilege, but not the duty in such cases, to add to this to make 
market value on the entry. A difference of even fifty per cent between this invoice 
value (purchase price) and the appraised value (market value as defined in the Act) 
does not strongly suggest fraud because the two may be honestly different and have 
no necessarily close relationship to each other, and as to such purchased goods the 
law nowhere casts obligation upon the importers to give the market value. The 
difficulty of successful prosecution becomes more marked in view of the statutory 
requirement (Section 7) that the forfeiture shall apply to the whole package in which 
such undervalued article is to be found, no matter how trivial relatively the value 
may be compared with that of the whole package. * * * 

Of course, if there is evidence of actual fraud as distinguished from this mere pre¬ 
sumption of undervaluation, Section 9 of the Customs Administrative Act (and the 
earlier statutes which it replaced, Revised Statutes 2,864, and Section 12, Act 1874) 
affords ample relief to the government independently of the statutory presumption 
of fraud. In a case of purchased goods, additions to make market value, authorized 
by Section 7 of the Customs Administrative Act, are permissive, and not mandatory 
(see language of the statute and Hoeninhaus v. United States, 172 U. S., 622), and 
in the declaration made by the importer where the merchandise has been actually 
purchased in the form prescribed in Section 5, the importer states that the “invoice 
and entry * * * contains a just and faithful account of the actual cost of said 
goods, etc.” You will see, therefore, that the declaration does not pretend to give 
the market value, nor is the importer required, under Section 7, to state market 
value but he may do so. In case, therefore, a purchaser of goods states the cost and 
fails to state market value, what actual fraud can be predicated upon his not doing 
what the law doe3 not require him to do, and when the value is increased by more 
than fifty per cent and the goods are seized or suit instituted, how easy it is to over¬ 
come the presumption of fraud by proving he did actually state the cost and the truth 
in the matter. 

This proposed amendment was approved by the Merchants’ Asso¬ 
ciation of New York and the Board of General Appraisers, and was 
included within H. R. 19750, 59th Congress, First Session, which 
passed the House, June 1906. 


XIII. 


Amend section 7 as follows: 

After the words, “make such addition in the entry to,” insert the 
words, “or such deduction from”; and after the words, “as in his 
opinion may raise,” insert the words, “or lower.” 


24 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


ARGUMENT. 

As duties upon imported merchandise are to be assessed upon the 
“ actual market value,” and appraising officers are called upon to 
determine such “actual market value,” it is a logical sequel of per¬ 
mission to add to make market value that deductions from invoice 
values should also be allowed for a similar purpose. 

The law contemplates that duty shall be assessed upon the actual 
foreign market value of the merchandise at the time of exportation, 
and if the invoice value is higher than the actual market value, 
either because the goods were purchased some time before shipment 
when the market was higher, or for any other cause, there would 
seem to be no good reason why the importer should not be allowed 
to make such deduction from the invoice value as he may deem 
proper, to make his entered value conform to the actual market 
value. He would make any such deduction at his peril, for if he 
should reduce the value below what the appraising officers found 
to be the actual market value, his goods would be advanced and he 
would be required to pay the additional duties provided by the 
statute for such undervaluation. 

This proposed amendment is approved by the Merchants 7 Asso¬ 
ciation of New York and the Board of General Appraisers, and was 
included in H. R. 19750, 59th Congress, First Session, which passed 
the House June, 1906. 


XIV. 


Amend section 11 as follows: 

After the words “all general expenses 77 insert the words “to be 
estimated at not less than ten per centum per annum. 77 

At the end of the paragraph add the following: 

The actual market value or wholesale price, as defined by law, of any imported 
merchandise which is consigned for sale in the United States or which is not actually 
sold and freely offered for sale in usual wholesale quantities in the open market of 
the country of exportation to all purchasers, shall not in any case be appraised at less 
than the wholesale price at which such or similar imported merchandise is actually 
sold and freely offered for sale in usual wholesale quantities in the United States in 
the open market to all purchasers, due allowance by deduction being made for esti¬ 
mated duties thereon, cost of transportation, insurance and other necessary expenses 
from the place of shipment to the place of delivery, and a reasonable commission not 
exceeding ten per centum, if any of the same has been paid. 

ARGUMENT. 

The first suggested change is moved by the fact that almost with¬ 
out exception the general expense item of manufacturers’s cost state¬ 
ments is inadequate. No such item can be fairly computed at less 
than ten per cent, and the exceeding difficulty of correctly ascertain¬ 
ing the same on this side makes advisable a minimum fixed by law. 

This proposed amendment, suggested by a member of the Ways 
and Means Committee, and referred in rough draft to the Board of 
General Appraisers for suggestion, is by the said Board approved in 
the form here submitted. It is no more drastic or comprehensive, 
and enacts no other or different legislation than Congress intended 
the last provision of section 11 of the customs administrative act. It 
meets the deficiencies of that provision as shown by eleven years of 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 25 

administration. Inasmuch as it does not cover merchandise sold in 
open market abroad it should be added to this paragraph instead of 
substituted for the last provision which alone would apply to such 
importations as are purchased in the open market. 

Owing to the differences in conditions, the same rule cannot be 
with justice applied to goods which are manufactured and sold in 
the open market abroacj that is applied to goods which are manu¬ 
factured abroad and sold in the open market only in this country. 
The present provisions for the determination of dutiable value prove 
the inequality of any single rule for both classes of merchandise, and, 
in consequence, numerous trades have ceased to sell in the open 
market abroad but consign or sell in confined sales in this country. 
Where goods are manufactured and sold in the open market to all 
purchasers abroad every item of the expenses of manufacturing such 
goods, as well as the warehousing thereof until sold, and the expenses 
of advertising and selling the same and the interests upon the capital 
necessary to carry the goods to that time and to sell them, and the 
whole of the profit thereupon, is included in the dutiable value of 
open market price. Where goods are so sold the dutiable value is 
easily ascertained under the rules of law as now written. 

Where, however, goods are consigned, or what is the commercial 
equivalent—confined to one or more purchasers in this country and 
not sold in the open market abroad—the expenses of warehousing 
and carrying the same until sold, of advertising the same for sale, of 
the employment of agents to that end, and all attendant expenses 
of marketing the same in the open market, and a part of the profit 
thereupon, are not, under the present law, added to the dutiable 
value thereof, because expensed in this country. Hence an inequality 
in cases of dutiable value of goods identical in value and manu¬ 
facture follows. In this class of proceedings the consignee or exclu¬ 
sive purchaser in this country becomes a partner with the manufac¬ 
turer abroad in both disbursements and sometimes profits. The 
manufacturer abroad is willing to receive less, because he is relieved 
of the expenses of marketing, and can take a less profit, whilst the 
consignee or exclusive purchaser in this country, making part of the 
disbursements, receives a part of the profits and is pro tanto a partner 
with the manufacturer abroad. AMiile in the former case all this 
expense and profit is included in the dutiable value, in the latter it 
is not. 

The provision of law suggested for the ascertainment of dutiable 
value compels that the disbursements in this country—that is to say, 
every item up to the point of time when the goods are placed in the 
open market to all purchasers, together with that portion of the 
manufacturer’s profit here made—shall be taken into consideration 
and become a part of the dutiable value of the goods, exactly as is 
now done and was contemplated should be done, under the rule of 
law with reference to those who manufacture and sell openly in 
foreign countries. In other words, this rule preserves as the dutiable 
value of all imported merchandise the foreign wholesale open market 
value and requires that, whatever the conditions of shipment and 
manufacture, the same basis of dutiable value for all classes of 
persons; to wit, the value of the goods as and when they are freely 
offered for sale in open market to all purchasers. No other safe basis 
of dutiable value exists but one fixed at open market value where all 


26 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


the world buys. Any other basis is often fixed by caprice and 
artifice while this is fixed by the certain rules of commercial competi¬ 
tion and actual profit. 

XV. 

Amend section 13 as follows: 

After the word ‘‘may” in the clause “he may order a reappraise¬ 
ment,” insert the words ‘ ‘ within sixty days thereafter; ” and after the 
words “he may within,” strike out the word “two” and insert the 
word “twenty.” 

ARGUMENT. 

This provision is one of manifest justice. It extends the time 
within which an importer may take appeal in reappraisement cases 
from two to thirty days, and compels the collector to take his appeal 
within the same time. 

This proposed amendment is approved by the Merchants’ Associa¬ 
tion of New York and the Board of General Appraisers, and was 
included in H. R. 19750, 59th Congress, First Session, which passed 
the House in June, 1906, and is recommended by the Secretary of the 
Treasury in his annual reports of 1907 and 1908. 

XVI. 


Amend section 13 as follows: 

Strike out all of said section, commencing with and including the 
words “three general appraisers,” down to and including the words 
“all parties interested therein,” and insert in lieu thereof the 
following: 

nine general appraisers, to be by rule thereof assigned for determination. In such cases 
the general appraiser and boards of general appraisers shall proceed by all reasonable 
ways and means in their power to ascertain, estimate and determine the dutiable 
value of the imported merchandise, and in so doing may exercise both judicial and 
inquisitorial functions. In such cases all hearings shall be open and in the presence 
of the importer or his attorney and any duly authorized representative of the gov¬ 
ernment, who may examine and cross-examine all witnesses produced, unless the 
general appraiser, or the board of general appraisers, before whom the case is pending, 
shall determine that the public interest will suffer thereby, in which case such finding 
shall be entered upon the record of the case, together with a full summary of all the 
facts developed at any closed hearing, which record, shall, after due notice and before 
decision, be open to the inspection and rebuttal of both parties. The decision of 
the single general appraiser in case of no appeal, and of the board of three general 
appraisers, in all reappraisement cases shall be final and conclusive against all parties 
and shall not be subject to review in any manner for any cause in any tribunal or 
court save and except as to questions of fraud and want of jurisdiction. 

ARGUMENT. 

The first part of this amendment contemplates distribution of 
these cases for decision by rule of the Board rather than by order 
of the Secretary of the Treasury, who is a party to the proceeding 
and should not be enabled to choose his tribunal. 

The intent of Congress undoubtedly was to make reappraisements 
final with the board of general appraisers. Subsequently the courts 
held that the decision of the board of three general appraisers, sup¬ 
posedly final in view of the statute, could be reviewed for fraud or 
want of jurisdiction. This holding was adhered to for a considerable 



AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 27 

period of time, but in more recent decisions it would appear, from 
a careful examination of the decisions of the courts, that, in two 
cases at least, the courts have gone beyond the original doctrine 
and proceeded to review the evidence passed upon by the board in 
reappraisement cases and to reappraise merchandise themselves. 
See Gulbenkian v. United States (153 Fed. Rep., 858; T. D. 28079) 
and the very recent case of United States v. Haviland (T. D. 29523). 

No tribunal other than a United States appraiser, and after him 
a single United States general appraiser, and thereafter a board of 
three general appraisers, is by law empowered to ascertain the duti¬ 
able value of imported merchandise, and in this judgment any court 
or board of general appraisers other than a reappraisement board 
attempting to do such, goes beyond the authorization of the statute. 
For this reason it is deemed important, if not necessary, to motfe 
clearly define the functions of the board of general appraisers and 
the courts in this particular, and in the further particular of the 
extent to which a reappraisement board should go in the matter of 
open hearings. 

The enclosed provision is submitted as a necessary and practical 
statute for the solution of the much vexed questions of open hearings 
and review in reappraisement cases. It preserves in the general 
appraisers the present power given by statute to proceed to the exam¬ 
ination and appraisement of merchandise “by all reasonable ways 
and means in his and their power,” and at the same time enacts into 
statute the right sought to be accorded the importer and the govern¬ 
ment by the treaty between the United States and Germany and 
subsequently extended to other countries, to have open hearings and 
be present by counsel and cross-examine witnesses in reappraisement 
cases. At the same time, practically in the language of the German 
convention, it preserves the right to introduce testimony and show 
facts which could not be introduced under rules of evidence in a 
court of law. It gives the right to the general appraisers to avail 
themselves of investigations previously made upon kindred subjects 
and to look to and incorporate within the record testimony taken 
in previous reappraisement cases, to take the testimony of and 
examine papers, books and invoices of witnesses whose business 
interests will not permit of a cross-examination of them in person, 
to receive government documents which are given to agents of the 
government in confidence, and secures to the opposing party full 
and fair opportunity to know all the facts thus heard, without dis¬ 
closing the indentity of the parties, which are thus presented to the 
general appraisers, and affords full opportunity to rebut these facts 
by any available evidence or argument. 

It secures finality in decisions in reappraisement cases in so far 
as k is possible under the Constitution and the decisions of the 
Supreme Court. The courts have held that a reappraisement pro¬ 
ceeding is an inquisitorial function. See In re Megroz (49 Fed. Rep., 
828), Origet v. Hedden (155 U. S., 228), Auffmordt v. Hedden (137 
U. S., 310), and Passavant v. United States (148 U. S., 214). It is 
thought best to incorporate this into the language of the statute, 
for there has been some disposition by subsequent decisions to con¬ 
vert these proceedings into strictly judicial proceedings, and,in order 
to secure perfectly the right to present documents and make investi¬ 
gations not strictly in accordance with the rules of evidence admitted 


28 AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 

in a court of law this declaration should be made in the statute. 
The right to cross-examine witnesses, etc., introduces pro tanto judi¬ 
cial features and is a right not now afforded by statute. (Auffmordt 
v. Hedden, 137 U. S., 310.) In that case the lower court in its opinion 
said: 

There is one other point upon which I am not clear; that is, when this board takes 
testimony (and whether they will take it at all or not they are to decide themselves), 
whether they are bound to let the importer know that they are taking it; or, if they 
do let him know they have taken it, whether they are bound to let him know what it 
is, so he may answer it. But my impression is that that is discretionary with the 
board; that they may make inquiry by what they deem to be proper ways and means; 
and that the importer must rely on their fairness and judgment as to what testimony 
they do take and the weight they give it; that the fact that the importer was not in¬ 
formed who the witnesses were, and what they testified to, and given an opportunity 
to^cross-examine them, and an opportunity to meet it, does not constitute a valid 
objection against the reappraisement. 

The importer assigned as errors: 

(1) That he was not permitted to confront the opposing witnesses by testimony in his 
own behalf; (2) or to sift evidence secretly or openly heard in opposition to him; (3) 
or to have the aid of counsel if he desired; and particularly that the rule of “reasonable 
ways and means ” could not exist in a tribunal which proceeded to examine an issuable 
matter under a rule which excluded lawyers. 

In reply to this, and affirming the decision of the lower court, the 
Supreme Court said: 

We are of opinion that, under the statute, the question of the dutiable value of the 
merchandise is not to be tried before the appraisers as if it were an issue in a suit in a 
judicial tribunal. Such is not the intention of the statute, and the practice has been 
to the contrary from the earliest history of the Government. 

And further, quoting with approval Cheatham v. United States 
(92 U. S., 85), it is said by the court: 

All governments in all times have found it necessary to adopt stringent measures 
for the collection of taxes and to be rigid in the enforcement of them. These measures 
are not judicial; nor does the government resort, except in extraordinary cases, to the 
courts for that purpose. 

Indeed, to proceed in a strictly judicial way to ascertain facts in 
accordance with section 11 of the customs administrative act, as any 
case of importance would develop, would be a labor of infinite diffi¬ 
culties and endless time. 

An examination of the authorities discloses that while a reappraise¬ 
ment may be made final as to all the facts and evidence in the case, 
it is exceedingly doubtful, if not conclusive, from the language of the 
decisions that the right to review the proceedings of a general appraiser 
or the Board of General Appraisers in particulars of fraud and want of 
jurisdiction can not be denied. The courts have held that if a general 
appraiser has proceeded fraudulently or beyond the ways provided 
by statute, it is open to attack in the courts on the grounds that 
he is without jurisdiction. See Hilton v. Merritt (110 U. S., '92), 
United States v. Passavant (189 U. S., 21), Passavant v. United 
States (148 U. S.,214), Muser v. Magone (155 U. S., 246), and Auff¬ 
mordt v. Hedden (137 U. S., 310). Indeed, it would seem clear that if 
any board specially created by statute, whose ways of procedure are 
marked by statute, disregards the law, makes assessment upon the 
property of another, that such assessment and tax when it seizes 
upon the property of the other is without due process of law, and in 
that particular would be in violation of the constitutional provision 
which makes the courts ever open to correct all proceedings without 



AMENDMENTS TP CUSTOMS ADMINISTRATIVE ACT. 


29 


due process of law. If the board were a court, these conclusions 9 
would not follow. Should the committee, however, agree to change 
the name of the board to that of a court, as herein suggested, there 
seems but little doubt, if any, that Congress, having thus provided 
a day in court for reappraisement cases could make them absolutely 
final on all questions of law and fact when decided by a board or 
court of three. 

This procedure is approved by a majority of the board of general 
appraisers, though some of the members think it should be a rule of 
the board rather than statute. It is believed, however, to be a 
matter of too great importance to rest in the form of a rule, which 
may be easily revoked by the board, rejected by the courts or erad¬ 
icated by convention. 

As it has been seriously contended that the provisions of section 10 
do not apply to general appraisers, it seems wise to embrace those 
herein, as is done in the proposed provision. 

Amend section 15 as follows: 

Strike out all of section 15, as amended by the Act of May 27, 1908, 
and insert in lieu thereof the following: 

Sec. 15. That, under and in pursuance of the authority vested by Article III of the 
Constitution of the United States, there is hereby created a United States court of 
customs appeals, which shall consist of a chief justice and two associate justices ap¬ 
pointed by the President, by and with the advice and consent of the Senate, not more 
than two of whom shall be appointed from the same political party, each of whom shall 
receive a salary of ten thousand dollars a year, and each of whom shall at the time of 
such appointment have been admitted to practice in the Supreme Court of the United 
States and shall be experienced in the customs laws of the United States. It shall be 
a court of record, with jurisdiction as hereinafter limited and established. 

Thaf such court shall prescribe the form and style of its seal and the form of its writs 
and other process and procedure as may be conformable to the exercise of its jurisdic¬ 
tion as shall be conferred by law. It shall have the services of a marshal, with the same 
duties and powers, under the regulations of the court, as are now provided for the 
marshal of the Supreme Court of the United States, so far as the same may be appli¬ 
cable, which shall be performed by the United States marshals in and for the districts 
where sessions of said court may be held, and to this end said marshals shall be the 
marshals of said court of customs appeals. The court shall appoint a clerk, whose 
office shall be in the city of New York, and who shall perform and exercise the same 
duties and powers in regard to all matters within its jurisdiction as are now exercised 
and performed by the clerk of the Supreme Court of the United States, so far as the 
same may be applicable. The salary of the clerk shall be three thousand six hundred 
dollars a year, to be paid in equal monthly installments. The costs and fees in the 
said court shall be fixed and established by said court in a table of fees to be adopted 
and approved by the Supreme Court within three months after the organization of said 
court: Provided , That the costs and fees so fixed shall not, with respect to any item, 
exceed the costs and fees now charged in the Supreme Court; and the same shall be 
expended, accounted for, and paid over to the Treasury Department of the United 
States in the same manner as is provided in respect of the costs and fees in the Supreme 
Court. The court shall have power to establish all rules and regulations for the conduct 
of the business of the court within its jurisdiction as conferred by law. 

That the said United States court of customs appeals shall always be open for the 
transaction of business, and sessions thereof may be held annually, or oftener, by the 
said court, the chief justice or a justice thereof, in the several judicial circuits, at the 
following places: In the first circuit, in the city of Boston; in the second circuit, in 
the city of New York; in the third and fourth circuits, in the cities of Philadelphia 
and Baltimore; in the fifth circuit, in the city of New Orleans; in the sixth, seventh 
and eighth circuits, at the city of Chicago; in the ninth circuit, in the cities of Seattle, 
Portland, and San Francisco, and in such other places in each of the above circuits 
as said court may from time to time designate. The said court shall organize and open 
for the transaction of business at the city of New York within ninety days after the 
day of confirmation by the United States Senate of the last confirmed of the first three 
justices thereof. 


30 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


That no appeal, whether by writ of error or otherwise, shall hereafter be taken or 
allowed from any board of United States general appraisers to any circuit court, and 
no appellate jurisdiction shall hereafter be exercised or allowed by said circuit courts 
in cases decided by said board of United States general appraisers; but all appeals by 
writ of error or otherwise allowed by law from such board of general appraisers shall 
be subject to review only in the United States court of customs appeals hereby estab¬ 
lished, according to the provisions of the Acts establishing and regulating the same. 

That the court of customs appeals established by this Act shall exercise exclusive 
appellate jurisdiction to review by appeal, writ of error, or otherwise as by law pro¬ 
vided final decisions by a board of general appraisers in all cases as to the construction 
of the law and the facts respecting the classification of merchandise and the rate of 
duty imposed thereon under such classification, and the fees and charges connected 
therewith, and all appealable questions as to the jurisdiction of said board, and all 
appealable questions as to the laws and regulations governing the collection of the 
customs revenues; and the judgment or decrees of said court of customs appeals shall 
be final in all such cases, excepting that in every such subject within its jurisdiction 
the court of customs appeals at any time may certify to the Supreme Court of the 
United States any questions or propositions of law concerning which it desires the 
instruction of that court for its proper decision. And thereupon the Supreme Court 
may either give its construction on the question and propositions certified to it, which 
shall be binding upon the court of customs appeals in such case, or it may require 
that the whole record and cause may be sent up to it for its consideration, and there¬ 
upon shall decide the whole matter in controversy in the same manner as if it had 
been brought there for re Anew by writ of error or appeal. And excepting, also, that 
in any such case as is hereinbefore made final in the court of customs appeals it shall 
be competent for the Supreme Court to require, by certiorari or otherwise, any such 
case to be certified to the Supreme Court for its review and determination with the 
same power and authority in -the case as if it had been carried by appeal or writ of 
error to the Supreme Court. But no such appeal shall be taken or writ of error sued 
out unless within sixty days after the entry of the order, judgment, or decree sought 
to be reviewed. 

That any justice who, in pursuance of the provisions of this Act, shall attend a 
session of the court of customs appeals held at any place other than where he resides 
shall be paid as herein provided for travel and attendance, not to exceed ten dollars 
per day, and the reasonable expenses, not to exceed six dollars per day, of one steno¬ 
graphic clerk who may accompany him. 

That the marshals of the several districts in which said court of customs appeals 
may be held shall, under the direction of the Attorney General of the United States 
and wdth his approval, provide such rooms in the public buildings of the United States 
as may be necessary for said court: Provided , however , That in case proper rooms can 
not be provided in such buildings then the said marshals, with the approval of the 
Attorney General of the United States, may, from time to time, lease such rooms as 
may be necessary for such court; that the bailiffs and messengers shall be allowed the 
same compensation for their respective services as are allowed for similar services in 
the existing circuit courts: And provided further, That in no case shall said marshals 
secure other rooms or employ other officials or employees than those regularly occu¬ 
pied by existing circuit courts of appeals, circuit courts, or district courts, or other 
public officers, except where such can not by reason of other actual occupancy or use 
be occupied or used by said court of customs appeals. 

That no appeal or writ of error by which any re viewable order, judgment, decree, 
decision, or finding may be reviewed in the court of customs appeals under the provis¬ 
ions of this Act shall be taken or sued out except within sixty days after the entry of 
such order, judgment, decree, decision, or finding sought to be re\dewed, and if the 
owner, consignee, or agent of any imported merchandise, or the collector or Secretary 
of the Treasury, shall be dissatisfied with the decision of the board of general appraisers, 
as provided in section fourteen of the customs administrative Act of June tenth, 
eighteen hundred and ninety, as amended July twenty-fourth, eighteen hundred and 
ninety-seven, and May twenty-seventh, nineteen hundred and eight, and as the same 
may hereafter be amended, as to the construction of the law and the facts respecting 
the classification of such merchandise and the rate of duty imposed thereon under 
such classification, or other appealable decision of said board, they or either of them, 
may, within sixty days next after such decision, and not afterwards, apply to the 
United States court of customs appeals for a review of the questions of law and fact 
involved in such decision. Such application shall be made by filing in the office of 
the clerk of said court a concise statement of errors of law and fact complained of, and 
a copy of said statement shall be served on the collector or on the importer, owner, con¬ 
signee, or agent, as the case may be. Thereupon the court shall immediately order 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


31 


the board of general appraisers to return to said court the record and evidence taken 
~y phem, together with the certified statement of the facts involved in the case and 
their decision thereon; and all the evidence taken by and before said board shall be 
competent evidence before said court of customs appeals. The said court of customs 
appeals is further vested with power to order said board to take additional testimony 
as to any particular fact or issue in dispute and return the same to said court whenever 
said court shall be of the opinion the ends of justice will be best subserved .thereby. 
Such further evidence, with the aforesaid returns, shall constitute the record upon 
which said court of customs appeals shall proceed to hear and determine the questions 
of law and fact involved in such decision of said board of general appraisers, and the de¬ 
cision of said court of customs appeals shall be final, and such cause shall be remanded 
to said board of general appraisers for further proceedings to be taken in pursuance 
of such determination. And whenever, on appeal or writ of error or otherwise, a case 
coming from the court of customs appeals shall be reviewed and determined in the 
Supreme Court the case shall be remanded by the Supreme Court to the said court for 
further proceedings in pursuance of such determination. And all the provisions of 
law, now in force regulating the method and system of review through appeals or writs 
of error or otherwise in the cases covered by this Act, shall, except as herein expressly 
or by implication modified, regulate the methods and system of appeals, writs of error, 
and other methods of review provided for in this Act with respect to the court of cus¬ 
toms appeals, including all provisions, if any, for bonds or other securities to be 
required and taken on such writs of error or review or appeals. 

That, immediately upon this Act becoming operative and the organization of said 
court herein established, all cases within the jurisdiction of this court now pending by 
writ of error or other review or appeal in any and all of the circuit courts of appeals 
shall, with the record and samples therein, be certified by such courts, respectively, 
to this said court for further proceedings in accordance herewith; and all such cases 
likewise pending in any of the United States circuit courts shall, as to all those wherein 
orders for the taking of further testimony have been already made, as soon as the taking 
of testimony therein by referee as provided by law shall have been completed, and as 
to all others immediately, likewise certify the same, together with the records and 
samples therein, to this said court for further proceedings in accordance herewith. 

That the chief justice of said court shall be so designated in the order of appointment 
and commission issued him by the President, and the associate justices shall have 
precedence according to the date of their commissions, or, when the commissions of 
two or more of them bear the same date, according to their ages. Any two of the mem¬ 
bers of said court shall constitute a quorum; any one may upon designation by the 
chief justice hold a session of said court for the hearing and submission of cases in any 
of the circuits as designated. 

That in case of vacancy, temporary inability or disqualification for any reason, of 
any one or two justices of said court, the chief justice thereof may request any other 
qualified United States circuit or district judge or judges to act in his or their place, or, 
upon such request to and designation by the President of the United States, such 
judge or judges shall be duly qualified to and shall so act. 

Said United States court of customs appeals shall have power to review any decision 
or matter wdthin its jurisdiction and may affirm, modify, or reverse the same and 
remand the case with such orders as may seem to it proper in the premises, which shall 
be executed accordingly. 

That immediately upon receipt of any record transmitted to said court for determi¬ 
nation the clerk thereof shall place the same upon the calendar for hearing and sub¬ 
mission; that such calendar shall be called and all cases thereupon submitted, except 
for good cause shown, at least once every sixty days; that no justice of said court shall, 
after one year after the first organization of said court, be allowed to draw or receive 
any salary unless he shall first take and subscribe an affidavit before an officer entitled 
to administer oaths that no cause in his court remains undecided that has been sub¬ 
mitted for decision for the period of ninety days. 

That in addition to the clerk of said court the court may appoint an assistant clerk 
at a salary of one thousand eight hundred dollars per year, three stenographic clerks 
at a salary of one thousand eight hundred dollars a year each, one bailiff at a salary of 
one thousand tvo hundred dollars a year, and one stenographic reporter at a salary of 
two thousand four hundred dollars a year, and a messenger at a salary of nine hundred 
dollars a year, all payable in equal monthly installments, and all of whom, including 
the clerk, shall hold office during the pleasure of and perform such duties as are assigned 
them by the court. That said reporter shall prepare and transmit to the Secretary of 
the Treasury once a week in time for publication in an appropriate department of the 
Treasury Decisions copies of all decisions rendered to that date by said court, and 
prepare and transmit, under the direction of said court, at least once per year, reports 


32 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


of said decisions rendered to that date, with appropriate syllabi, constituting a volume, 
which shall be printed by the Treasury Department in such numbers and distributed 
or sold as the Secretary of the Treasury shall direct. 

That so much of the public funds as may be necessary to carry out the purposes of 
this Act and all final judgments, when in favor of the importer, shall be satisfied and 
paid by the Secretary of the Treasury from the permanent indefinite appropriation pro¬ 
vided for in section twenty-four of this Act. 

ARGUMENT. 

This amendment creates a new court, to be styled “The United 
States Circuit Court of Customs Appeals.” It vests jurisdiction in 
this court of all appeals taken from the Board of United States 
General Appraisers and provides appeals shall be taken directly to 
that court from the Board. It further vests jurisdiction therein 
over extraordinary process affecting the customs service. It further 
contains an itinerant provision in that a single justice thereof may 
proceed from port to port in the different circuits of the United 
States, as do the justices of the Supreme Court for the purpose of 
hearing argument and other proceedings in customs appeal cases. 
Its relation to the Supreme Court of the United States is identical 
with that of other courts of appeal, and is intended to effect a speedy 
and sound adjudication of all customs appeals and relieve the exist¬ 
ing circuit courts and circuit courts of appeal of that class of cases. 

The adjudication of the questions affecting a tariff act concerns 
the raising of as much as $330,000,000 public revenue annually, 
the prosperity and existence of most of the great industries of the 
country and the cost of almost every article of consumption to 
every citizen of the land. The success or failure of business enter¬ 
prises constituted of the great volume of about $1,500,000,000 of 
annual foreign importations, the great importing business of the 
nation, is also vitally affected by a speedy, fair and just interpre¬ 
tation of that law. So intimately is the national welfare associated 
with this law that every reenactment of it witnesses excessive trade 
disturbances. 

As every rate and every phrase of a tariff act are the subject of 
judicial construction, until such is finally had, no tariff act is com¬ 
plete, and until then all affected trades and industries are to an extent 
unsettled. 

While with the country at large the Congress is popularly believed 
the determinative body of tariff rates and schedules, as a matter of 
fact the courts and the customs administrative officers finally in a 
great number, if not great majority, of cases determine these matters. 
The Dingley tariff law passed Congress in July, 1897, and by reason 
of interpretation and construction of its provisions whole schedules 
and numerous rates have been greatly changed from the supposed, if 
not manifest, purpose of Congress. These changes frequently net ten 
per cent, fifteen per cent, and sometimes greater differences. And 
at this day—over eleven years after that enactment—there are yet 
pending for decision questions of equal import, which by reason of the 
long drawn out road to final appellate decision may yet be delayed a 
year or years. The Dingley act to-day is a court-made and not a 
Congress-made statute, which, perforce the slow appellate processes 
provided, is still undergoing tardy but certain changes. 

That administration and judicial construction of a tariff law deter¬ 
mine its character has been the history of every such law. The pro- 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


33 


gressive changes in the average rate of duty collected upon dutiable 
importations under the tariff law of 1897 bear witness to this fact. 
The average ad valorem rate of duty collected upon dutiable mer¬ 
chandise from 1897 to the close of the fiscal year 1908 is as follows: 
1898, 48.80 per cent; 1899, 2.07per cent; 1900, 49.24 percent; 1901, 
49.64 per cent; 1902, 49.78 per cent; 1903, 49.03 per cent; 1904,48.78 
percent; 1905, 45.24 per cent; 1906, 44.16 per cent; 1907, 42.55 per 
cent; 1908, 42.78 per cent. 

The duties collected during the fiscal year 1898 included sums col¬ 
lected under the previous tariff act. The highest rate of duty col¬ 
lected under the tariff law of 1897 was during the fiscal year ending 
June 30, 1899, when the average rate was 52.07, and the least during 
the fiscal year 1907, when the average rate was 42.55. The average ad 
valorem rate of duty collected under the Dingley tariff in the year 1908 
was nearly 10 per cent below that collected in 1899, and was about 
that collected in the last full year of the Wilson-Gorman tariff law, 
to wit, 1897, which was 42.17 per cent ad valorem. 

No practicable scheme or plan for reimbursement to the government 
of duties pending litigation over a rate can be devised except the col¬ 
lection of the higher rate during that period. In considering the vices 
resultant upon delay in ultimate decision of customs appeals, there¬ 
fore, not the least to be borne in mind is that this higher rate of duty, 
already held illegal by the first tribunal, must be kept in full force 
and effect pending final decision, so that this law results and has 
resulted in the exaction of illegal duties for years and becomes and is 
an instrument for the defeat of justice and the intent of the Congress by 
keeping in effect the exaction of illegal rates of duty. Upon final 
decision these are refunded in part to the attorney, in part to the 
broker and in part to the importer. But there is no refund to the 
consumer who, by reason of the maintenance of the higher rate of 
duty, has been compelled to pay an artificial and illegally exacted 
price for his merchandise. On behalf of the manufacturer who 
profits by this illegal rate of duty it is advantageous that litigation be 
prolonged. We may not, therefore, be surprised to find that agents 
of any who have found this to be advantageous would be strenuously 
in favor of the maintenance of the present dilatory system of appeals. 
Of course, should the illegally exacted rate be upon raw material, the 
result of prolonged litigation might eventually be made the means of 
driving out of business the manufacturer in this country consuming 
such material. 

Speedy and sound adjudication of these cases is vitally necessary 
to settled business conditions and just assessment of public revenues. 
Only three years since, four and a half years were, on an average, 
required after decision by the Board of General Appraisers for the 
final determination in the circuit courts of appeal of any point of 
law raised with reference to any provision or rate of the tariff act. 
Since that time, perforce the dilatory system of law provided, it yet 
requires two and a half years to settle finally any such question. 
This is to a large extent, by reason of the fact that appeals from the 
Board of General Appraisers are first prosecuted to the circuit courts, 
and thence to the circuit courts of appeal. Under the amendments 
of May 27, 1908, a different and perhaps slightly more expeditious 
provision was enacted. This provides all appeals from decisions of 

61318 —am customs— 09 - 3 


34 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


the Board of General Appraisers shall he taken to the United States 
circuit courts; that thereafter the Government of right, but the 
importer only on certificate from the judge deciding the case, can 
appeal to the United States circuit court of appeals. This procedure 
still invites delay by putting a premium upon it. It is to the inter¬ 
est of both counsel and importer, having lodged the appeal, to delay 
its determination as long as possible, for each day adds to the accu¬ 
mulated protests on that point, the refunds upon which they divide, 
while the higher assessed rate of duty enables them to collect the 
difference from the consumer. Consequently, whatever shortens the 
life of a customs appeal ratably reduces the number of protests to be 
handled by the customs officers and the Board upon that subject. 

Herein, therefore, is the most practical solution of the vexed prob¬ 
lem of reducing the great number of protests now filed. As protests 
are made on each shipment during an appeal, whatever shortens the 
time of appeal pro rata lessens the number of protests. The legisla¬ 
tion proposed by this bill will reduce the period of final determination 
of all issues raised concerning the tariff law certainly to within one 
year, now two and one half years. 

The average life of an appeal under the amendments of May 27, 
1908, is as yet purely speculative, but experience warrants the state¬ 
ment that where the inclination exists, and it always will where profit 
is possible, there will under this amendment be no perceptible shorten¬ 
ing of the average life of customs appeals. In fact some of those 
interested have publicly declared that the new act would not expe¬ 
dite their causes. 

While in the appellate procedure some material progress was made 
by this amendment, the real exigencies have not been met. There 
yet remains the great diversity of practically final authority. In 
fact this feature is aggravated, for where final decision was previously 
ordinarily had in one of nine circuit courts of appeal, such now rests 
in nine circuit courts of appeal, twenty-nine circuit judges, eighty- 
nine district judges and nine Supreme Court judges, all of whom are 
qualified to sit as circuit judges, not to mention the territorial judges 
and those of the District of Columbia. Already the books contain 
numerous conflicting decisions of customs cases decided by co-ordinate 
circuit courts and circuit courts of appeal, sufficient to indicate the 
probabilities of confusion resulting under this amendment. 

Moreover, no warrant of reason seems apparent why a decision by 
three members of the Board of General Appraisers, checked off in 
approval by six others, all of whom are lawyers who for years have 
been schooled in customs law and practice, who have the witnesses 
before them to observe their demeanor and conduct, and who are 
thoroughly schooled in every such case that arises, should be reversed 
by one circuit judge who seldom hears a customs case, knows but 
little about that peculiar law, has no witnesses before him, and whose 
court is already overcrowded by other causes. 

It is the theory of representative government that every official 
is more or less unconsciously controlled by local education and 
environment. This is the theory which actuated the Fathers in 
providing representative government that every district and locality 
might be represented. Senators from different states; representa¬ 
tives from different districts, are examples. Circuit judges, who 
by law must be appointed from residents within the circuit in which 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


35 


they preside; district judges the same; and the personnel of the 
Supreme Court of the United States, constituted on the same theory, 
is of judges who are appointed with reference to their geographical 
residence. The theory has been vindicated by a* century’s experi¬ 
ences. The tariff law is one which affects differently different sec¬ 
tions of the country; it is a law that affects the whole nation, and 
in the interpretation of every rate, paragraph and schedule of which 
the whole nation and every section thereof is vitally concerned. It 
is a law, therefore, in the determination of which manifestly there 
should be brought representation from the various sections and 
parties of the country; and its construction, if the theory of our 
representative government be true, should not be in the main vested 
in but one of the circuit courts of the United States. At the present 
time eighty-three per cent of the customs appeals from decisions 
of the Board of General Appraisers, which is a representative body 
appointed from all sections and parties of the country, are decided 
by the circuit court for the southern district of New York, which is 
but one of seventy-seven circuit court districts. On appeal from the 
circuit courts the ultimate decision of over ninety per cent of the 
cases appealed to circuit courts of appeal are decided by the circuit 
court of appeals for the second circuit, which is made up of judges 
from the states of New York, Vermont and Connecticut, principally 
New York—three of the forty-six states of the Union—and who 
by law are required to be residents of those states before they are 
eligible to membership in that court. Either as fact or as precedent 
these' courts decide finally over eighty-five per cent of the customs 
cases on appeal, and these precedents control the remaining per¬ 
centages of such decisions. 

It is but fair, just and right, it is in harmony with representative 
government, that in the construction of a law in which every decision 
rendered affects the whole country, and every citizen and section of 
the country, and ofttimes different sections differently, and in which 
the whole country and every citizen is interested from the stand¬ 
points of development, growth and taxes, should be finally construed 
by a judicial body drawn from the entire country, and not a fractional 
part thereof. This is true as a matter of governmental principle 
without the least reflection upon any member of the courts mentioned, 
all of whom are jurists of well known learning in the law and profound 
in their decisions. 

It is a matter of great injustice, however, to these judges and all 
parties to litigation to thrust these cases upon a court already greatly 
overburdened with a diversity of causes, civil, criminal and admiralty. 
The condition of the files of the United States circuit court for the 
southern district of New York earnestly demands that they should be 
relieved of every possible number and class of cases. The President¬ 
elect in various speeches throughout the country has pointed out that 
one of the most serious governmental problems of the day is the great 
delay in judicial proceedings and the overburdened conditions of 
court dockets. 

Formerly this circuit comprised the districts of Vermont and Con¬ 
necticut and the northern, southern and eastern districts of New 
York. Each district had a single district judge; there was one circuit 
justice and one circuit judge; making seven in all. In 1887 Judge 
Lacombe was appointed circuit judge. In 1891, when the circuit 


36 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


court of appeals was established, Judge Shipman was appointed cir¬ 
cuit judge. In 1900 the western district of New York was established 
and Judge Hazel was appointed district judge. In 1902 a fourth 
circuit judge (Judge Coxe) was appointed. In 1903 a second district 
judge (Judge Holt) was appointed in the southern district of New 
York; and in 1906 a third district judge (Judge Hough) was appointed. 
So that at present the judges qualified to sit in this circuit and to hear 
customs cases are thirteen in number, including circuit Justice Peck- 
ham of the Supreme Court of the United States. They consist of one 
Supreme Court justice, four circuit judges and eight district judges. 

Notwithstanding the large personnel of this court and their great 
industry as shown by the number of matters disposed of each year, 
the extraordinary amount of litigation arising within the circuit has 
resulted in an extraordinary accumulation of pending causes. A bill 
is now pending in Congress, favorably reported, to increase by one 
this personnel. The condition of the files in the court and the 
extraordinary number of causes arising therein would seem to require 
this court for ordinary cases to consist of an increase of at least one- 
third in its personnel. Even this in all probability would not be 
sufficient, for the reason that the judges therein are much overtaxed 
in their labors and, it is pertinent to add, greatly underpaid. Accord¬ 
ing to the annual report of the Attorney General for 1908 there were 
pending July 1, 1908, in the southern district of New York, the 
following number of cases: 


Civil cases to which the United States was a party, including 855 customs cases. 1, 023 

Criminal prosecutions to which the United States was a party. 180 

Bankruptcy cases, voluntary and involuntary... 1, 419 

Other suits, including admiralty. 13, 826 


Total pending and undecided matters July 1, 1908. 16, 448 

There were commenced therein during the last fiscal year: 

Civil cases to which the United States was a party, including 424 customs cases. 469 

Criminal prosecutions to which the United States was a party. 191 

Bankruptcy cases, voluntary and involuntary. 927 

Other suits, including admiralty. 1,402 


Total. 2,989 

There were terminated during the same period: 

Civil cases to which the United States was a party. 551 

Criminal prosecutions to which the United States was a party. 177 

Bankruptcy cases, voluntary and involuntary. 550 

Other suits, including admiralty. 986 


Total. 2, 264 


Thus it will be seen that of matters pending within said district 
there were July 1, 1908, 16,448; that during the fiscal year preceding 
there were disposed of 2,264 matters, as against 2,989 new matters 
filed. Of the current business 725 more matters arose therein than 
were disposed of, which represent the annual addition to the accumu¬ 
lated undisposed-of matters. The ratio is about one-third of that 
actually disposed of. Given 16,448 matters pending, to which 725 
are annually added, we have the figures presented by the report of 
the Attorney General of the condition of the business within that 
district, into which 85 per cent of the customs appeals are thrown for 
decision under existing law. 


















AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 37 

In the circuit court of appeals for the second circuit, to which go 
customs appeals from the circuit court for the southern district of 
New York, there were pending and undecided on July 1, 1907, 128 
matters, and docketed during the fiscal year 1908, 286 matters. 
There were disposed of during that fiscal year 281 matters, and there- 
fore pending July 1, 1908, 133 matters. If the customs appeals were 
withdrawn from the circuit court for the southern district of New 
York and the circuit court of appeals for the second circuit, their 
already overburdened calendars would be in a measure relieved. In 
any event, appellate cases, many of which involve as to customs 
appeals hundreds of thousands and at times more than a million dol¬ 
lars, dependent upon intricate points of peculiar law, trade customs, 
scientific investigation, principles of manufacture, with voluminous 
records of testimony, and far-reaching in their effects upon the com¬ 
merce and manufactures of the country years to follow, should be 
determined by specially qualified judges with ample and undisturbed 
time for deliberate consideration. 

The study, construction and interpretation of customs law, prin¬ 
ciples and precedents is one of peculiar technicality, just as much so 
as probate, admiralty and other special branches of the law. No 
man can become proficient in it unless he makes it a specialty. It is 
of such volume and peculiarity that it requires the whole time, 
attention and study of any lawyer however great his qualifications. 
Its bearing upon the country and its industries is such that no man 
can be charged with its adjudication properly the greater portion of 
whose time is required to be devoted to the construction of other 
law. Those practicing customs law uniformly, where their business 
is of any moment, are compelled to devote their entire time to cus¬ 
toms law. Yet, under the present system, the appeals on this subject 
prosecuted from decisions of the Board of General Appraisers, are 
taken into and determined by circuit courts and circuit courts of 
appeal presiding in which are judges whose entire time is more than 
occupied with cases involving other branches of the law and with 
which alone most of those courts are greatly overburdened and far 
behind. When customs cases are presented in their courts they are 
exceptional cases. Their calendars are already overcrowded. This 
is particularly true in that circuit which has the decision of over 
eighty-three per cent of the customs appeals—the southern district 
of New York. Necessarily the United States circuit court for the 
southern district of New York and the United States circuit court of 
appeal for the second circuit (New York, Vermont, Connecticut) by 
reason of the vast population of New York and the numerous con¬ 
troversies therein, are more overburdened with ordinary cases than 
any other circuit court or circuit court of appeals. Yet these are the 
courts to which over eighty-three per cent of customs appeals are 
prosecuted. Its judges are able, exceedingly industrious, but abso¬ 
lutely overworked by reason of the multiplicity of causes before their 
courts. The time and attention required by the intrusion of customs 
appeals upon the attention of these judges cannot properly be ascer¬ 
tained by the numerical estimate of appeals, for the reason that where 
other cases might depend upon the construction of familiar statutes 
or principles of law, customs cases are peculiar both as to law and 
fact and require special study and examination for sound decision. 
In view of the constantly increasing population and litigation in this 


38 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


circuit, the probabilities are strong that in the decision of cases other 
than customs cases alone even greater additions to the personnel of 
that circuit will have to be made. 

Witness the proof of these statements in that there are now pend¬ 
ing on appeal from the Board in United States circuit courts ap¬ 
proximately 820 appeals; in the United States courts of appeal 72 
causes. Of these over 600 are pending in the circuit court for the 
southern district of New York, while the entire 72 in circuit courts of 
appeal are, with the exception of 12, in the circuit court of appeals 
for the second (New York) circuit. These involve many duplicated 
appeals which will be disposed of by one hearing and decision, but 
present a calendar, nevertheless, which suggests an imposition upon 
this circuit of cases which should be more ratably distributed through¬ 
out the circuits or collected within a single special circuit where con¬ 
stant and exclusive attention could be given such important issues. 

A fair estimate of the number of appeals which would be heard by 
the proposed circuit court of customs appeals may be stated to be 
from 500 to 1000, of which from 150 to 250 would involve different 
and intricate problems of law and fact. This is a sufficient number 
of cases to be well considered by any court of three judges. The 
number of appeals per annum for the past four years from the Board 
of United States General Appraisers is represented by the following 
tabulated list, which also indicates the moment of such cases: 


Year ending June 30— 

Circuit court. 

Circuit court of 
appeals. 

Supreme 

Total. 

Argued. 

Not 

argued. 

Argued. 

Not 

argued. 

Court. 

1905. . 

154 

131 

36 

12 

1 

334 

1906. 

94 

292 

50 

18 

3 

457 

1907. 

121 

161 

44 

15 

5 

346 

1908. 

107 

737 

56 

10 

1 

911- 



There are pending at the present time and would be upon enact¬ 
ment of the proposed bill approximately one thousand appeals from 
the Board of General Appraisers in the various circuit courts and 
circuit courts of appeal throughout the United States. Many of 
those are duplicates, but there are at least 160 separate, distinct 
and important litigated issues. The court then, at organization 
would be met with this number of cases upon its calendar, and 
annually arising thereafter at least 500 appeals, of which at least 150 
would be subjects of much consideration. In view of the early 
enactment of a tariff law, it is fair to assume that the number of 
appeals arising hereafter would be much greater than this. Par¬ 
ticularly would this be true in the presence of a court whereat early 
final decision could be had. The greater expedition given to liti¬ 
gation the greater the desire of the party actually in interest to try 
out his rights in the court of last resort. 

A comparison of the appeals pending in different courts is in¬ 
structive. 

The Supreme Court of the United States, consisting of nine justices, 
from 1890 to 1908, inclusive, disposed of on an average 400 cases 
per annum. This included decisions upon extraordinary and other 


















AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


39 


process. This would be an average of approximately 45 decisions per 
justice. The reports of that court show many of these decisions to be 
rendered without opinion. While it is undoubtedly true that the 
questions presented to the Supreme Court are mucli more weighty 
than those that would be presented to the proposed court, neverthe¬ 
less many customs cases are finally adjudicated in the Supreme 
Court, and many of them rank in importance far ahead of the average 
case decided by the Supreme Court. 

The respective United States circuit courts of appeal during the 
fiscal year ending June 30, 1908, disposed of upon an average less 
than 135 appeals each. They were as follows: first circuit, 75; 
second circuit, 281; third circuit, 114; fourth circuit, 52; fifth circuit, 
123; sixth circuit, 135; seventh circuit, 87; eighth circuit, 203; 
ninth circuit, 139; total 1,209. The reports of the Attorney General 
show that this was an extraordinary number of cases decided by 
those courts and greater than in any preceding year. 

The court of appeals for the District of Columbia, an appellate court 
of three judges, paid an annual salary of $7,000 each, disposed of the 
following matters during the years 1902 to 1908, inclusive: 1902, 149; 
1903, 131; 1904, 131; 1905, 175; 1906, 176; 1907, 169; 1908, 185. 

It would seem quite as important that a tribunal of the same dignity 
and standing and comparatively the same expense should be accorded 
to ultimately determine all appeals in customs cases, many of which 
involve millions of dollars of refunds from the government, and each 
of which involves the substantial rights of the great manufacturing 
and importing interests of the country, and the ultimate decision of 
which in numerous instances involves the progress or continuance of 
some of these great interests. The work afforded the court, there¬ 
fore, would not only be of the highest order but sufficient to keep at 
least three qualified judges busy. 

A calculation of the expense of the proposed court fixes it at 
approximately $50,000 per annum. This is an insignificant sum 
compared with the results to be obtained. The time of ultimate 
decision in customs cases would be reduced to within one year instead 
of as at present requiring two and one-half years or more. It would 
add to the expenses of collecting the customs revenues, which accord¬ 
ing to the last annual report of the Secretary of the Treasury was 
$9,580,626.25 for the fiscal year ending June 30, 1908, such an insig¬ 
nificant sum as could hardly be estimated in percentages. Indeed, 
no public service can be adequately estimated in dollars and cents. 
If only that branch of the public service were established, and if only 
that administration of justice and the laws were provided which, by 
the performance of its duties, returned in dollars and cents the 
expense of its constitution, but few would be constituted. The same 
may be said of the time during which public officers are employed. 
If offices were not to be created which did not occupy the entire time 
of the officials or which did not keep them pressed to their utmost 
capacity and intelligence and ability, but few offices would be created. 
The justices of the higher courts, members of Congress and other pub¬ 
lic officials performing the highest duties in public service are not and 
should not be kept continually at their desks. 

Objection has been made to the constitution of this court by those 
interested in the present dilatory system in that it provides that the 
justices thereof must be experienced in customs laws and admitted 


40 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


to the Supreme Court of the United States. This is a remarkable 
criticism. It bespeaks ignorance in the place of intelligence of the 
particular subject to be decided. The trend of all modern business 
and professional lines is towards specialism. This principle is 
observed in the personnel of the greatest courts of the land. Mr. 
Justice Brown, lately retired from the Supreme Court, was specially 
appointed to that bench by reason of his extensive knowledge of 
admiralty law. Mr. Justice White, at present an honorable member 
of that court, was appointed by reason in part of his special knowledge 
of civil law. Mr. Justice Lacombe of the United States circuit court 
of appeals for the second circuit and a judge in the southern district 
of New York, was appointed to that branch especially to decide 
customs cases by reason of his special knowledge of customs law. 

It is deemed so completely special that customs attorneys prac¬ 
ticing before the Board of General Appraisers and the courts in this 
line practice in no other branches of the law, and few other lawyers 
care to undertake this class of cases. If it be true that those not 
skilled in customs law should be appointed judges of customs cases, 
it would be equally true that those not versed in any law should be 
appointed judges of general cases, and so on ad infinitum. The 
result of this proposition reducto ad absurdum is that judges are 
better qualified by ignorance than intelligence, and that laymen and 
not lawyers should be made judges of our courts. 

There is a general provision in the bill that the appointees should be 
admitted to the Supreme Court of the United States. This is a pru¬ 
dent provision and secures in the personnel of the court the require¬ 
ment to practice in the Supreme Court, to wit, that they shall have 
been engaged in general practice of the law in some state of the union 
for the period of at least three years. This assures in the personnel of 
that court general practitioners specially skilled in customs laws. No 
less qualifications should surround the personnel of any court. 

Further criticism is made by parties interested in dilatory proceed¬ 
ings that judges of the general bench are better qualified to decide 
these cases than those specially skilled in customs law, as members of 
the Board, who are specially skilled in this line of law. The decisions 
of the Supreme Court of the United States fail to carry out this con¬ 
tention. Since 1891 fifteen appeals were passed upon by the Board, 
the circuit courts, the circuit courts of appeal and the Supreme Court, 
and the final decision by the Supreme Court was as follows: 



Board 

Circuit 

courts 

Circuit 

courts 

appeal 

Affirmed. 

11 

8 

l 

5 

Reversed.:. 

i 1 

7 

10 




When it is borne in mind that after leaving the Board additional 
testimony was introduced by one side or the other, or both, in the 
circuit court in most, if not all, of these cases, and that therefore the 
circuit courts and the circuit courts of appeal passing upon the cases 
had a complete record, whereas the Board had an incomplete record, 
the record of the Board for reversal in the Supreme Court of the 
United States is remarkable. 












AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 41 

A frequent vice of the present system we find in the defeated liti¬ 
gants seeking another circuit to relitigate their cases already decided 
in the hope of favorable decision, or preferring certain circuits by 
reason of supposed advantages arising from divergent views taken in 
earlier decisions. In several instances there are now conflicting 
decisions on the same point not alone between circuit courts but also 
between circuit courts of appeal, which naturally result in the enforce¬ 
ment of different rates of duty at different ports if these decisions are 
observed by the lower tribunals. The amendment of 1908, as stated, 
will simply multiply the§e differences. 

The customs administration of this country, excepting its unper¬ 
fected appellate provisions, is the most perfect in existence, and the 
vast revenue collected, the almost incalculable value of the interests 
affected, can well afford the additional expense to perfect this sys¬ 
tem. The final appellate authority upon customs matters should, 
by reason of the diversity of subjects and the technicality required 
for sound decision, be not alone schooled in customs law and practice 
but should have ample time to and should study many cases from 
the standpoints of science, mechanics and mechanism, as well as 
history of development and production. The importance of the 
subjects as bearing upon the interests directly or indirectly of every 
citizen of the country in more ways than one demands the most 
studious and painstaking consideration, and should not be cast by 
the law as an unimportant increment to an already overcrowded 
jurisdiction. 

This government, however, is great enough, strong enough, and 
always abundantly able to pay the expenses of whatever system 
conduces to the welfare of the public and its best interests as a nation, 
and to secure to every citizen the right to have a plain, speedy and 
adequate remedy at law for the enforcement of all his rights of both 
person and property. As one of its results would be to make certain 
and complete all litigated rates and provisions of the tariff act in 
about one-third the time now required, it would seem that the 
expense involved would be insignificant in comparison with that 
result alone. 

The creation of the proposed court is approved by the Board of 
United States General Appraisers and the Secretary of the Treasury 
(see annual report 1908, page 64). 

The enactment of this amendment should provide a court which 
would relieve the congested dockets of other courts, unify the deci¬ 
sions on customs appeals, expedite such decisions to one-third of the 
presently required time, and add to the completeness of the most 
nearly perfect customs system in existence. 

XVIII. 

Amend section 19 as follows: 

After the words “cartons, cases, crates, boxes and sacks” insert the 
words “casks, barrels, hogsheads, bottles* jars, demijohns, carboys, 
and other containers or coverings, whether holding liquids or solids, 
which are not otherwise specially subject to duty under any para¬ 
graph of the tariff act.” 

ARGUMENT. 

The reasons for this amendment are the same as and fully set forth 
in the proposed similar amendment to section 5. 


42 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


XIX. 


Amend section 19 as follows: 

Strike out the last sentence, commencing with “That the words,” 
and ending with the words “in this section,” and insert in lieu thereof 
the following: 

That the words “value,” or “actual market value,” or “wholesale price,” whenever 
used in this act, or in any law relating to the appraisement of imported merchandise, 
shall be construed to be the actual market value or wholesale price of such, or similar 
merchandise comparable in value therewith, as defined in this section, when actually 
sold and freely offered for sale in the open market in usual wholesale quantities of 
the country of exportation to all purchasers. 

ARGUMENT. 

In view of the different and conflicting views taken by different 
courts as to what constitutes market value, value, price and dutiable 
value, it is eminently desirable that the Congress in no uncertain 
language define what is meant thereby. Experience in the determi¬ 
nation of proper dutiable value leads to the certain conclusion that in 
the interest of uniformity and certainty of dutiable value only that 
value is a safe and consistent one for dutiable purposes which is fixed 
by an open market wherein the merchandise must be sold and freely 
offered for sale to all purchasers. Such was the decision of the 
Supreme Court of the United States in the case of Cliquot's Cham¬ 
pagne (3 Wall., 114). Since that time, however, in instances the 
courts have departed therefrom. It has been held that dutiable 
value as fixed by the law at the present time was satisfied in instances 
where the goods were packed and shipped from the factory without 
having been offered to the public and all purchasers. See in this 
connection United States v. Haviland (T. D. 29523). Any other 
market as a dutiable basis than one at which all purchasers can com¬ 
pete will be constantly the subject of contrivance and subterfuge. 
It is, therefore, recommended that the provision as above quoted be 
adopted. 

XX. 


Amend section 23 as follows: 

After the words “United States” and before the word “shall” 
insert the following: “including decay, injury, or destruction by rot 
of fruits or any other merchandise.” 

After the word “thereon” insert the following: “except in cases 
where such goods may have been seized and destroyed under orders 
issued by any lawfully constituted board of health.” 

After the words “the property so abandoned” insert the words 
“if of any value,” and at the end of the section add the following 
sentence: “The right of abandonment herein provided for may be 
exercised whether the thing abandoned has any market value or not.” 

ARGUMENT. 

The reasons for the necessity of this amendment are found in the 
following facts as applicable to importers of decayed fruit: 

(1) Until the decision of the Supreme Court in the case of Lawder 
v. Stone (187 U. S., 281), promulgated December 1, 1902, fruits 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 43 

suffering injury or deterioration by decay prior to importation were 
regarded as damaged, and allowances were usually made under the 
laws authorizing such allowances by way of deduction of duty, prior 
to the adoption o f said section 23. 

The latter view has been adopted by the circuit court of appeals 
in the fourth circuit in Stone y. Lawder (101 Fed. Rep., 710), where 
said section 23 was construed in what appears to be a well considered 
opinion. This is the case reversed by the Supreme Court in the case 
above cited, where two propositions were decided: 

1. That pineapples so decayed in transitu as to be utterly worth¬ 
less were subject to no duty as imported merchandise, but constituted 
a shortage or nonimportation rather than a case of damage. 

2. That where destroyed merchandise is rendered valueless there 
remains nothing which can be the subject of abandonment, and hence 
said section 23 can have no application. 

This decision has been extended by the lower courts so as to embrace 
the following propositions: 

1. That small percentages (as low as two or three per cent) of im¬ 
ported fruit which was rendered unmerchantable by decay would be 
allowed for as a nonimportation to this extent, and could not be re¬ 
garded as a damage. 

2. That these percentages could be established by the opinions or 
loose estimates of the importers themselves or their clerks, who exam¬ 
ined as much as one package or box out of every ten packages on the 
invoices. 

3. That the average percentage of the packages examined must be 
taken to represent the condition of the entire importation as to decay r 
where as much as ten per cent was actually examined. 

4. That it was immaterial if the fruit alleged to be decayed was sold 
with the balance of the importation and brought the full market value 
of sound fruit of the same kind in the same market. 

These decisions are reviewed and referred to in Board decision in re 
Denunzio Fruit Co., G. A. 6713 (T. I). 28712). 

The courts have further decided that decayed or rotten fruit seized 
and condemned by a lawfully constituted board of health as unfit for 
food and injurious to health was a nonimportation for which allowance 
could be made by way of deduction of duties assessed on it, affirming 
like rulings made by the Board of General Appraisers. 

It will easily be understood how difficult it becomes to apply these 
principles (except the last as to seized goods) in the administration of 
said section. Imported fruit cannot be readily examined as to its 
condition of soundness immediately on its arrival from abroad, and 
hence these examinations are often made as much as ten or twelve 
days after arrival. No evidence is given except by the importers’ 
witnesses as to such estimated percentages, which are often specu¬ 
lative guesses. The customs service, employed by the collector, is 
admitted to be inadequate to the task }f furnishing any evidence on 
this point, so vast and numerous are the tens of thousands of fruit pack¬ 
ages daily brought (into New York especially) on arriving steamers. 
Weeks of the Board’s time are consumed in struggling with the solu¬ 
tion of these problems with the result of reaching conclusions that 
are entirely unsatisfactory and necessarily prejudicial to the interests 
of both the government and of conscientious importers. 


44 


AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 


The proposed amendment, if adopted, would so modify the present 
judicial rulings as to return to what is considered to have been the 
intent of Congress in providing for the abolition of allowances for 
damage to imported goods, as was practiced for nearly a century 
before the case of Lawder v. Stone, supra , was decided by our Supreme 
Court. 

XXL 

Add a new section to the customs administrative act, as amended 
by the act of May 27, 1908, to be known as section 32, as follows: 

“Sec. 32 . All notices in writing to collectors of dissatisfaction of 
any decision thereof, with the invoice and all papers and exhibits, 
shall be forwarded to the board of nine general appraisers of mer- 
. chandise at New York to be by rule thereof assigned for hearing or 
determination or both. The President of the United States shall 
designate one of the board of nine general appraisers of merchandise 
as president of said board and others in order to act in his absence. 
Said general appraisers of merchandise shall be divided into three 
boards of three members each, to be denominated respectively Board 
1, Board 2 and Board 3. The president of the board shall assign 
three general appraisers to each of said boards and shall designate 
one member of each of said boards as chairman thereof, and such 
assignment or designation may be by him changed from time 
to time, and he may assign or designate all boards of three gen¬ 
eral appraisers where it is now or heretofore was provided by law that 
such might be assigned or designated by the secretary of the treasury. 
The president of the board shall be competent to sit as a member of 
any board, or assign one or two other members thereto, in the absence 
or inal ility of any one or two members of such board. Each of the 
boards of three general appraisers, or a majority thereof, shall have 
full power to hear and determine all cases and questions arising 
therein or assigned thereto; and the general board of nine general 
appraisers, and each of the general appraisers of merchandise, shall 
have all the jurisdiction and powers and proceed as now, heretofore 
and herein provided. The said board of nine general appraisers 
shall have power to establish from time to time such rules of evi¬ 
dence, practice and procedure, not inconsistent with the statutes, as 
may be deemed necessary for the conduct and uniformity of its pro¬ 
ceedings and decisions and the proceedings and decisions of the 
boards of three thereof; and for the production, care and custody of 
samples and records of said board. The president of the board shall 
have control of the fiscal affairs and the clerical force of the board, 
make all recommendations for appointment, promotion and other¬ 
wise affecting said clerical force; he may at any time before trial 
under the rules of said board assign or reassign any case for hearing, 
determination or both, and shall designate a general appraiser or a 
board of general appraisers and, if necessary, a clerk thereto, to pro¬ 
ceed to any port within the jurisdiction of the Unitrd States 
for the purpose of hearing, or determining if authorized by law, 
causes assigned for hearing at such port, and shall cause to be pre¬ 
pared ar d d ily promulgated dockets therefor. No member of any 
of said boaids shall sit to hear or decide any case on appeal in the 
decision of which he may have previously participated. The board 


* 

AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 45 

of three general appraisers, or a majority of them, who decided the 
case, may, upon motion of either party made within thirty days next 
after their decision, grant a rehearing or retrial of said case when in 
their opinion the ends of justice may require it.” 

ARGUMENT. 

The enactment of this provision is eminently desirable. The or¬ 
ganization of the board of general appraisers is as provided by sec¬ 
tion 12 of the customs administrative act as originally adopted in 
1890. The act at that time was drawn without the light of expe¬ 
rience. No provision was made in the act for the organization of 
the board, no provision for a president and other administrative 
officers of the board, but the entire matter was left in an inchoate 
manner with the Secretary of the Treasury. Since said time the 
organization of the board has been built up by regulations promul¬ 
gated by the Secretary of the Treasury and rules adopted by the 
board with the aid of subsequent legislation. This organization at 
the present time, however, rests on a very unstable basis, and it is 
the purpose of this proposed legislation to fix by statute that organi¬ 
zation. Since the organization of the board rules adopted thereby 
and by the treasury department for the purpose of securing uni¬ 
formity of decision have been set aside by the courts. Subsequently, 
on May 27, 1908, Congress remedied this defect. It has been known, 
however, for a considerable period of time that the organization of 
the board would be attacked in numerous cases as without authority 
of law. It may, indeed, be seriously questioned from a fair reading 
of the statute, whether there is any power in the Secretary of the 
Treasury by regulation or the board by rule to provide that the 
board may act in more than one board of three general appraisers. 
The vast amount of business before the board has compelled its 
organization since 1904 into three boards of coordinate authority. 
There should likewise be authority vested in the board or its presi¬ 
dent, wdiose function should be made certain by statute, to assign 
and reassign cases and to direct the proceedings of boards and members 
of the boards to different ports with full power to vest jurisdiction 
in such boards to hear such cases under the law. The diversity and 
extent of the duties of the board require such an elastic organization. 

The above provision has been carefully prepared by the coopera¬ 
tion of the several members of the board, and is submitted in the 
hope that the Congress will enact the same. It may be safely said 
that without such statutory organization after the enactment of the 
new tariff Jaw, among the questions which will be raised will be the 
vital one of the power of the board to decide particular cases and 
the jurisdiction of the several boards over particular cases. 

XXII. 

Add a new section to the customs administrative act, as amended 
by the act of May 27, 1908, to be known as section 33, as follows: 

“That the nine general appraisers of merchandise appointed under 
authority of an act entitled “An Act to simplify the laws in relation 
to the collection of the revenues,” approved June 10, 1890, and 
amendments thereto, shall hereafter be known and designated as 


♦ 

46 AMENDMENTS TO CUSTOMS ADMINISTRATIVE ACT. 

the|United States Customs Court, and their individual official title, 
and]’that of their successors in office, shall be Judge of the United 
States Customs Court. 

“The powers and jurisdiction of the said general appraisers, here¬ 
after known and designated as Judges of the United States Customs 
Court, shall remain as now, heretofore and hereafter provided by 
law, and nothing herein shall be construed as creating a new office, 
but each of said general appraisers now in office is expressly con¬ 
tinued therein under the designation of Judge of the United States 
Customs Court, with such tenure, jurisdiction, rights and duties as 
now fixed by law, the sole purpose of this provision being to change 
the official title of said United States general appraisers/ 7 

ARGUMENT. 

This proposed section is submitted to the Congress as an appro¬ 
priate provision for the change of the name of the board of general 
appraisers to that of a court. Already by virtue of the decisions 
of the courts and the language of the Congress, more particularly 
that of the amendment of May 27, 1908, the board performs all the 
duties and has the functions and powers of a court. The name 
appraiser or general appraiser is confusing with that of the local 
appraisers. In other countries a board of corresponding functions 
is known as a court of customs, and this provision is submitted to 
the same end. Since the board has all the functions of a court and 
exercises the duties of a court, there seems to be no cogent reason 
why it should not be so designated. 


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